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HEX Final Decision 2017-32
HEX NO. 2017—32 HEARING EXAMINER DECISION PETITION NO. PL20170001829 - 3570 Bayshore Drive, LLC, filed an appeal of the administrative approval of the Site Improvement Plan SIP-PL20150002675 for the Bayshore Beer Garden in the General Commercial Zoning District within the Bayshore Mixed Use Overlay District-Neighborhood Commercial Subdistrict (C-4-BMUD-NC). The subject property is located at 3555 Bayshore Drive, Naples, Florida in Section 14, Township 50 South and Range 25 East, in Collier County, Florida. DATE OF HEARING: November 9, 2017 STAFF RECOMMENDATION: Denial of Appeal. FINDINGS: 1. That Collier County's Land Development Code (LDC) relies on the 1987 Standard Industrial Classification manual (SIC) to define land uses. This manual describes and classifies categories of occupational uses. Each establishment listed in the SIC is classified according to its primary activity. 2. That the SIC manual does not designate uses to zoning categories. Designations are provided by the Collier County Land Development Code (LDC) pursuant to provisions within the Growth Management Plan. 3. That a microbrewery is not a separately listed business within any category of the SIC manual as either a principal or accessory use. Breweries are a use within SIC #2082 and included as "Establishments primarily engaged in manufacturing malt beverages." Within the SIC manual there are no minimum or maximum limitations on the size of a brewery. 4. That a brewery is not considered a principal use within the C-4-BMUD-NC district. 5. That the principal use is a beer garden and is a listed use under SIC 5813, drinking places. SIC #5813 is an allowed use within the C-4-BMUD-NC commercial zoning district. In this instance, the beer garden use relies upon an accessory microbrewery use to create the product that will be sold to the patrons of the principal business. 6. That a microbrewery if restricted in scale, is incidental and subordinate to the principal use of a beer garden. This microbrewery is related to the main purpose of the business, on the same lot, under the same ownership, utilizes less than 49% of the floor area and the principal use maintains on-site sales at 51% or greater. 7. That similar brewery operations customarily exist within Collier County alongside other commercial businesses. 8. That use of an accessory microbrewery in the Bayshore Mixed Use Overlay District - Neighborhood Commercial Subdistrict, is an allowed use consistent with the Growth Management Plan. 9. That the industrial manufacturing of beer, more typically known as a brewery (SIC 2082) as a principal use is in fact an industrial use that is not allowed as a principal or [17-CPS-01704/1375430/1155 1 of8 conditional use within either the underlying C-4 zoning district or the BMUD-NC overlay district. 10. Based on the applicant's written petition, testimony at the hearing of the appellant, the applicant, and the public, and the recommendation of staff, the Hearing Examiner finds in accordance with Section 250.58 of the Code of Laws that the petition should be denied. ANALYSIS: This Appeal questions a Site Improvement Plan (SIP) approved by staff for improvements for a change of use to an existing building and site that recognizes a microbrewery as an allowed accessory use in the Commercial-4/Bayshore Mixed Use Overlay Neighborhood Commercial (C- 4-BMUD-NC) zoning district within the Bayshore/Gateway Triangle Redevelopment Overlay zoning overlay (Bayshore Overlay). The Appellant filed an Appeal of the SIP (see exhibit H) based on the following objections: 1. That "industrial manufacturing of beer and related uses with site work" as described on the Exhibit "A" cover letter (attached hereto) as filed by the Property Owner with its Site Improvement Plan Application is not a permitted use of the Property; and 2. That "industrial manufacturing of beer" is not a principal, accessory or conditional use that can occur on the Property. Mr. Mike Bosi, Director of the Planning and Zoning Department, stated the County's position in the staff report provided for this hearing: 1. The BMUD-NC Overlay allows industrial uses. 2. The industrial manufacturing of beer, more typically known as a brewery (SIC 2082) is a stand-alone principal use is allowed within the Industrial Zoning District. The use is not specified as a principal or conditional use within either the underlying C-4 zoning district or the BMUD-NC overlay district. 3. The BMUD-NC Overlay is intended to be flexible and it expands the uses allowed by the underlying zoning district. 4. In the BMUD-NC zoning district, permitted uses are not specified by Standard Industrial Classification (SIC), but rather use groups, which allows for wider variety of uses than a single narrow SIC number. This approach to land use provides for more flexibility in determining what uses are allowed in the district by evaluating their use characteristics, rather than business characteristics, to make that determination....Based upon this arrangement all property owners within the BMUD- NC zoning district could reasonably expect to neighbor any one of the industrial, commercial or residential use types. 5. A microbrewery is an allowed accessory use to the proposed drinking establishment. 6. The accessory microbrewery is directly related to the principal use, as the beer produced within the establishment will be for on-site consumption. 7. The subordinate relationship is shown in the square footage allocations of the facility. Within the traffic analysis dated July 13, 2016 by Ted Treesh of Transportation Consultants, Inc., for the approved SIP, 3,845 sq. ft. of the 6,000 total sq. ft. is for public use for the beer garden or 57 percent of the structure; and 2,585 sq. ft. is dedicated to the microbrewery. [17-CPS-01704/1375430M55]55 2 of 8 8. The microbrewery is directly intertwined with the beer garden as a source of the venues main product of sale, being beer. 9. The projected trip split further demonstrates the subordinate role of the microbrewery to the overall operation. The trip generation associated with the beer garden and accessory microbrewery as provided by the Applicant shows that the drinking area would generate 44 P.M. peak hour trips and the microbrewery would produce 3 P.M. peak hour trips, or six (6) percent of the total P.M. peak hour trips. 10. The accessory 2,585 square feet of the microbrewery use is of a scale that limits the external influence of the microbrewing activities to the subject site, with little to no external effect upon surrounding land uses. 11. An Official Interpretation on the subject property was issued on August 11, 2017. The interpretation requested clarification on the same question posed within this appeal, whether the zoning supported the allowance of a microbrewery as either a permitted, conditional or accessory use. Background The Bayshore/Gateway Triangle Redevelopment Overlay (Bayshore Overlay) designates the location of the proposed microbrewery as BMUD-NC and the zoning atlas includes the underlying zoning reference: C-4-BMUD-NC. See attached Exhibit D for a full detailed listing of uses allowed in this overlay. It is notable that the Bayshore Overlay does not include uses listed by SIC numbers as typically found in the zoning uses listed in the LDC. When asked to explain, the Zoning and Planning Director provided the following testimony: "...Metal products and fabrication is one of the permitted uses; laboratories; laundries; metal — warehouses; repair shops; storage outdoor; and the one I found most interesting was research and development. And why do I find that interesting? Is one of the things that you will notice, that there's no SIC codes that are associated with these groupings. They're open. They are a large umbrella of activities.... Collier County's Land Development Code traditionally uses the SIC code approach to designate what land uses would be provided for. This a little bit more flexibility. It's a redevelopment area. It's a mixed-use redevelopment area, and I believe that flexibility was specifically intended within these groupings." Typically, the LDC categorizes SIC uses into zoning districts and then lists uses allowed within each District by their SIC number. The Bayshore Overlay is atypical in that it groups uses into categories under generic subtitles, then lists uses by topics without SIC numbers. The LDC section of the Bayshore Overlay as applicable to this appeal is listed as "Manufacturing, Wholesale and Storage" and provides the following description: "Premises available for the creation, assemblage, storage, and repair of items including their wholesale or retail sale". Listed uses under the Bayshore C-4-BMUD-NC district, in Section 2.03.03.I. Table 1 include: [17-CPS-01704/1375430/1]55 3 of8 J) Manufacturing/Wholesale/Storage • laboratory - Medical, analytical, research; • Laundries and Dry Cleaning; • Media Production; • Metal Products Fabrication; • Repair Shops; • Research and Development; and • Storage - Outdoor In addition the Bayshore Overlay includes the following language: "Any use not listed in the Table of Uses is prohibited unless the County Manager or designee may determine that it falls within the same class as a listed use through the process outlined in LDC Section 1.06.00, Rules of Interpretation." The process in 1.06.00 requires an Official Interpretation process be followed to determine additional uses. This process was initiated on March 31, 2017 by the Appellant. Mike Bosi, Director, Planning and Zoning Department, provided an official interpretation on August 11, 2017. This was subsequently appealed on September 6th, 2017 and is addressed in a companion item heard on the same day as this Appeal (see Exhibit F). Interpretations of the LDC and the Growth Management Plan are delegated in accordance with the LDC to the Director of the Planning and Zoning Department. Mr Bosi explained his approach to the interpretation during his testimony: "As I stated, I said there were two words that were really guiding our determination, and the first was focus, and that about where the zoning focus was, whether it was C4 or the Bayshore mixed-use district, and then the second was scale, and it is scale. And it's the scale of the operations in subordination to the primary use of the property that allowed me to make that determination that a use category that could be argued could be permitted, could be accommodated within an accessory capacity to a principal use that has a direct relationship to that principal use. And that is how the determination was arrived upon." There are over one-hundred and forty commercial uses allowed by right within the underlying C- 4 commercial zoning district (see Exhibit C). As conditioned the microbrewery will present no more impacts to the neighborhood than many of the other of uses allowed by the LDC within the Commercial C-4 such as: 1. Ancillary Plants. 2. Automotive vehicle and equipment dealers (5511 and 5599, new vehicles only) 3. Bowling Centers, indoor (7933) 4. Eating and Drinking establishments (5812 and 5813) 5. Food stores (groups 5411-5499) 6. Gasoline Service Stations (5541) with services and repairs as described in section 5.05.05 7. Hardware Stores (5251) [17-CPS-01704/1375430/1]55 4 of 8 8. Hospitals (8062-8069) 9. Motorcycle Dealers (5571) 10. Retail - miscellaneous (5921-5963, 5992-5999) Brewing beer is considered manufacturing by the 1987 OSHA SIC manual. Breweries are described under SIC #2082 (see Exhibit E) as "Establishments primarily engaged in manufacturing malt beverages." Industrial breweries can be large facilities utilizing a significant amount of infrastructure and dedicated to manufacturing. Mr. Bosi interpreted that such a primary use is intended for an industrial district and that not all manufacturing of beer will rise to the level of a large industrial operation when their scale is limited to operating in a manner comparable to allowed commercial uses. As provided in the Staff Report, microbreweries are not new to Collier County. They exist in multiple jurisdictions within the county and in a variety of similar commercial zoning districts. The Staff Report provided a listing of 5 other breweries, only one of which is in an industrial District. The 5 other locations identified by staff are: 1. Bone Hook Brewery at 1514 Immokalee Road. The zoning for this location is the Creekside Commerce Park PUD and the brewery is within the business district of the PUD. This business district specifically stated that Breweries (Group 2082) are an allowed principal use mixed within the other uses of the business district that include eating places, hotels, hardware stores, drug stores and retail bakeries. The PUD also contains separate tracts designated as industrial/commercial districts, however the brewery is only allowed within the business district. 2. Riptide Brewing Company at 987 3rd Ave., Naples. Riptide is within the Downtown District - Mixed Use zoning within the City of Naples. The "D" downtown district is intended to contain a mixture of uses including commercial, medical, office, service, restaurant, cultural, institutional, and residential. 3. Marco Island Brewery at 1089 N. Collier Blvd., Marco Island, is within the Commercial - C4 section of their zoning code. The intent of this commercial zoning district is to concentrate commercial development at the intersections of arterial roads where traffic impacts can readily be accommodated, to avoid strip and disorganized patterns of commercial development, and to create commercial centers. 4. Oil Well Brewery at 5334 Ave Maria Blvd. is within the Town Center designation of the Ave Maria SRA. The Town Center is a mixture of uses. Retail, office and residential are permitted within the Town Center while maintaining compatible relationships among buildings. 5. Naples Beach Brewery at 4120 Enterprise Ave., Collier County. This location is within an industrial park. The Naples Beach Brewery is primarily a brewery with a tasting/retail area for their product that occupies less than 20% of the business floor space. [17-CPS-01704/1375430/1]55 5 of8 Mr. Bosi provided testimony to further explain his position for the allowance of a microbrewery as an accessory use. His comments included three specific areas: • "...And if you look at the trip generations report that was supplied for the SIP, 47 total p.m. trips were generated by this facility. Three of them were allocated to the light industrial activity for the manufacturing of beer. That's 6 percent. That's 6 percent of the trips generated by this facility would be associated with that manufacturing activity, which is a permitted use group within the Bayshore mixed-use neighborhood commercial sub district." • "...The second aspect of the determination that's subordination was related to the square footage limitations.... The proposed use in regards to its impact, its visual impact upon the surrounding property owners in my regard, from my professional planning opinion, is a great improvement to the visual quality and the overall impression that the area will provide." • "...And then, ultimately, we suggested that a sales limitation be placed as 49 to 51 percent to ensure that that subordinate relationship can be maintained. So three individual factors that we arrived — that we utilized to try to justify and establish what that subordinate relationship will be." Further the property owner, through their legal counsel, Mr. Brooker, provided the following testimony: "...Finally, to conclusively demonstrate that the proposed microbrewery is an establishment primarily engaged in the retail sale of beer, we're willing to offer these stipulations today: At least 51 percent of all revenues of this business will come from sales of beer for on-site consumption. No more than 49 percent of the space or square footage of this establishment will be devoted to the manufacturing side of beer. We will be licensed under Florida's beverage law, specifically Section 561.221(3), as a vendor and manufacturer, and that licensing classification by the state requires us to, A, sell beer for on-site consumption and that our production is limited to less than 10,000 kegs per year. We will easily satisfy both of those conditions. We agree to limit off-site shipments —remember, we are not a distributor. Distributors must come to us, load up, and ship off site — no more than three shipments a week. And to the extent necessary, we stipulate to the accuracy and the binding nature of the professional opinions regarding traffic impacts contained in the TIS in your packet." The off-site activity proposed by the property owner was not considered during the OI review per Mr. Bosi's testimony: "There was — when I wrote the OI, the official interpretation, there wasn't a direct contemplation of the off-site, but in constructing the staff report for the appeal, I recognized that microbreweries can have off-site activity, and based [17-CPS-01704/1375430/1}55 6 of 8 upon limitations of what that could be, I was comfortable in providing for that limitation that only 49 percent of sales could be related to off-site." Conclusion The beer garden is the principal use and the accessory microbrewery supports that principal use. A beer garden is classified under SIC 5813 as one of 15 listed drinking places (see Exhibit E), including such businesses as tap rooms, bars, taverns, cocktail lounges and night clubs. With the scale of the accessory use described and subsequent limitations imposed by this decision, the accessory microbrewery will not exceed the intensities of the principal use. The microbrewery produces the product that the principal use relies upon and sales of this product must be primarily generated by the principal use. As limited, the accessory use could not become an independent business whose primary use is a brewery. DECISION: The Hearing Examiner hereby denies Petition No. PL20170001829, which is an appeal of the administrative approval of the Site Improvement Plan SIP-PL20150002675 for the Bayshore Brew Garden in the General Commercial Zoning District within the Bayshore Mixed Use Overlay District-Neighborhood Commercial Subdistrict (C-4-BMUD-NC), on property located at 3555 Bayshore Drive, Naples, Florida, and further described herein. The administrative approval of Site Improvement Plan SIP-PL20150002675 is hereby affirmed, and is further modified in accordance with the conditions below. ATTACHMENTS: Exhibit A - Legal Description Exhibit B - 11-9-2017 Transcript Exhibit C - Section 2.03.03 of the LDC, Commercial zoning districts Exhibit D - Section 2.03.07.I. Bayshore Mixed Use Overlay District Exhibit E - SIC Industry No. 2082 and 5813 Exhibit F - Official Interpretation Exhibit G - Appeal of Official Interpretation Exhibit H—Appeal of Site Improvement Plan LEGAL DESCRIPTION: See Exhibit A. CONDITIONS: The following condition was recommended in the Staff Report, and the Site Improvement Plan is hereby modified to impose this condition: 1. The facility shall maintain a minimum of 51% of all sales for on-site consumption and that the owner of the establishment shall provide documentation of percentage of sales on an annual basis to the Growth Management Department. [17-CPS-01704/1375430/1]55 7 of 8 The following stipulations were offered by the property owner at the public hearing, and the Site Improvement Plan is hereby modified to reflect these conditions: 2. No more than 49 percent of the space or square footage of this establishment will be devoted to the manufacturing of beer. 3. There will be no more than three (3) shipments off-site per week. 4. Production is limited to less than 10,000 kegs per year. APPEALS: This decision becomes effective on the date it is rendered. Pursuant to Ordinance 2013-25, as amended, a Hearing Examiner Decision may be appealed to the Board of County Commissioner or the Board of Zoning Appeals, as appropriate. Appeals must be filed within 30 days of the date the Hearing Examiner Decision is rendered. RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES. Date Ma Strain, Hearing Examiner Approved as to form and legality: iDC,0 Heidi Aston-Cicko Managing Assistant County Attorney [17-CPS-01704/1375430/1}55 8 of 8 ,*** OFA 5236 PG 78 *** EXHIt3T1'"A" LEGAL.DESCRIPTION Begin at the Southwest corner of Lot 115, NAPLES GROVE AND TRUCK COMPANY'S LI 1`I LE • FARMS NO. 2, according to the Plat thereof, as recorded in Plat Book 1, Page 27-A, of the Public Records of Collier County,Florida,thence run East 300 feet;thence North 166 feet;thence West 300 feet; thence South 166 feet to the point of beginning;being in the Southwest corner of Lot 115 of NAPLES GROVES AND TRUCK COMPANY'S LITTLE FARMS NO.2,LESS and EXCEPT,the West 25 feet thereof deeded to the State of Florida by deed recorded in Deed Book 28,Pages 80-81,Public Records of Collier County,Florida. . __ . ; \ i 17771 r\• ;4 1 '\ r ; ti WARRANTY DEED PAGE 3 OF 3 Exhibit B Page 1 of 103 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY HEARING EXAMINER Naples, Florida, November 9, 2017 LET IT BE REMEMBERED, that the Collier County Hearing Examiner, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION at 2800 North Horseshoe Drive, Room 609/610, Naples, Florida, with the following people present: HEARING EXAMINER MARK STRAIN ALSO PRESENT: Mike Bosi, Planning and Zoning Director Heidi Ashton-Cicko, Managing Assistant County Attorney Exhibit B Page 2 of 103 PROCEEDINGS HEARING EXAMINER STRAIN: Good morning, everyone. Welcome to the Thursday, November 9th meeting of the Collier County Hearing Examiner's Office. If everybody will please rise for Pledge of Allegiance. (The Pledge of Allegiance was recited in unison.) HEARING EXAMINER STRAIN: Thank you. We started a few minutes late. We were short on some chairs. For those of you who have not been seated, there are chairs available on the left side of the room as you come through the door. With that, we'll move to the review of the agenda. We have four items on today's agenda. Item 3A is a petition for Cameron Partners II, LLC. It's for the Heritage Bay PUD. That particular item is continued until November 30th. So if you're here for the Cameron Partners II, LLC, issue in Heritage Bay, that will not be heard today. It will be heard November 30th. Likewise, Item 3D is the Bautsch -- David Bautsch petition for a boat dock, and that's up in Hickory Shores. So if you're here for that one today, it's going to be continued; it is continued until November 30th as well. Both of those will not be heard today. ***That takes us to the two items that are on today's agenda that will be heard. They will both be discussed concurrently, and then separate decisions will be issued on each. Those two advertised public hearings are as follows: Item 3B, Petition No. PL20170003285. It's the 3570 Bayshore Drive, LLC, of an appeal to an official interpretation done by county staff, and then Petition No. PL20170001829, again, it's 370 (sic) Bayshore Drive, LLC. It's the petition for appeal of a site improvement plan, an SIP. SIP-20150002675. Both of these are Exhibit B Page 3 of 103 for the Bayshore Drive facilities at, I believe they're 3555 and 3557, possibly, on Bayshore Drive. First, all those wishing to testify on behalf of these items, please rise to be sworn in by the court reporter. So if you intend to speak today, please stand up to be sworn in. (The speakers were duly sworn and indicated in the affirmative.) HEARING EXAMINER STRAIN: Disclosures on my part, and my disclosures will be for both: I've talked with county staff I've met with the property owner way back before all this started. I was introduced to them at Commissioner Taylor's office. I also have provided Commissioner Taylor and Commissioner Fiala with the bases that we're having this hearing today. I also met with the applicant and his attorney and representatives at a meeting yesterday or actually it was -- I think it was Monday, two days ago, and we went over issues that I'll be asking clarification on today. And I also met with the county staff member who wrote the OI, Mike Bosi. We talked about issues for today's hearing. I've received emails from numerous people in Bayshore, and I assume most of them are in the Bayshore area, probably about 40. Every email I've received has been forwarded to Mike Bosi's office for record. I received an email late yesterday from the appellant, which I believe will be addressed at today's meeting. So with that, I have no other disclosures, and we'll move right into the process for today. The procedure for today will be three presentations. The first presentation will be by the appellant, which is the 35070 (sic) Bayshore Drive entity; the second appeal -- and that appellant will have one hour for their both expert testimony and discussion of the two issues. The next presentation will be by county staff in response to the appellant and also their position on the OI and the SIP; and the Exhibit B Page 4 of 103 last and final speaker will be the property owner. And each one of these speakers will be one hour. The property owner will be able to present their position. And with that, after the presentations by each one of the individuals -- now, they have up to an hour. It doesn't mean they'll take an hour. It depends on what they want to say -- we'll turn to the public for public comment. Public speakers will be limited to five minutes unless otherwise waived. And then after the public comment we'll have rebuttal by the entities that were previously providing presentations. Those rebuttals will be no longer than 10 minutes. And then that will be the end of today's particular hearing on these particular matters, and a decision on these matters is generally rendered within 30 days -- it will be rendered within 30 days. It's not just generally. We'll have it completed in 30 days, maybe less if the time affords. Decisions are final unless appealed to the Board of County Commissioners, and all speakers are limited to five minutes unless otherwise waived. With that, I do not have any procedural issues to discuss. Ms. Ashton, did you have anything you wanted to bring up? MS. ASHTON-CICKO: I believe you addressed that the petitions will be heard -- the testimony will be heard jointly and that the issues for today are essentially the same in both cases. HEARING EXAMINER STRAIN: Yes, thank you. Okay. With that, the first item up is the appellant's presentation. Do you mind approaching the podium, state your name and who you represent, and we'll go from there. MR. LEWIS: Hi. Good morning, Hearing Examiner Strain. Doug Lewis, for the record. I'm an attorney with the Thompson & Lewis law firm. We're located at 850 Park Shore Exhibit B Page 5of103 Drive, Suite 201A, Naples. We represent 3750 Bayshore Drive, LLC. They're the owner of an adjacent mixed-use project zoned BMUD-NC, Bayshore Drive mixed-use district neighborhood commercial, C4, that would be -- NC with the overlay. And my client's property is located at 3750 Bayshore Drive. A couple of housecleaning items. I do have some evidence binders today that I'd like to introduce into the record. I can give a copy to the owner, which I believe today is a party; is that correct -- HEARING EXAMINER STRAIN: That's correct. MR. LEWIS: -- in the proceeding? Okay. And also to staff as well. HEARING EXAMINER STRAIN: Do you have one for the court reporter? MR. LEWIS: Yeah. We have one for the court reporter, absolutely. HEARING EXAMINER STRAIN: In order to be in the record, she's going to need a copy. MR. LEWIS: Absolutely. Absolutely, we've got one for her, the court reporter. MS. ASHTON-CICKO: I need a copy. HEARING EXAMINER STRAIN: And the County Attorney's Office. MR. LEWIS: County Attorney. HEARING EXAMINER STRAIN: Well, which will be myself. MR. LEWIS: Well, we have one for Commissioner Strain, yeah. HEARING EXAMINER STRAIN: I'll just provide mine to the county attorney. At this point I'm not going to be able to read it. Exhibit B Page 6 of 103 MR. LEWIS: Well, it's a helpful guide as you're reviewing today to be able to follow along through the tab. HEARING EXAMINER STRAIN: Okay. We will do our best. THE COURT REPORTER: You can use mine and just give it back to me. MR. LEWIS: Okay. So we'd like to enter this binder into the record. There's Tabs 1 through 24. HEARING EXAMINER STRAIN: They will be in the record. MR. LEWIS: Thank you. In addition, we did just want to note, so we don't waive those, I did send an email out addressing -- on Monday I believe I received a procedure for the hearing today. I did note the objections. I don't want to waste my time today or your time today addressing those, but we don't waive those objections. We've raised those objections. We've outlined those objections in writing, and those are also noted under Tab 21 in the binder. HEARING EXAMINER STRAIN: I did have a discussion with the County Attorney's Office on your email. It came in late yesterday, so we had a brief discussion this morning. Ms. Ashton may want to address some issues on particular email. Heidi? MS. ASHTON-CICKO: Well, I'm going to need to review his binder, so I will address those issues after I have a chance to review what he submitted. HEARING EXAMINER STRAIN: Okay. Thank you. MR. LEWIS: So, yeah. There were some procedural objections that dealt with issues leading up to today's hearing. There are procedural issues that we raised in relation to your administrative procedures for how this hearing is supposed to flow Exhibit B Page 7of103 as it relates to how you've set it up today. So we've outlined those. I do have an expert here today, Mr. Greg Stuart, so I'd like to ask the County Attorney how we'd like to qualify him. I'm happy to get him qualified. MS. ASHTON-CICKO: Excuse me just a second. For the record, I would like to go through and address generally the issues I believe he's raised, and then I will review the package at a break and see if there's anything that I need to supplement. HEARING EXAMINER STRAIN: Okay. Why don't we move through -- the email that came in yesterday, I assume, is the one that would be the most important to review right now. MS. ASHTON-CICKO: Okay. The first issue he raised is that the hearing procedures do not comply with Chapter 9 of the county's administrative code. And the procedure is discretionary, at the sole discretion of the HEX, and that's very clear in Chapter 9 of the administrative code. I will provide a copy of that for the record for the clerk. Combining of time frames for the separately filed appeals: It's appropriate to consolidate the cases similar to how court proceedings are held for efficiency; however, decisions and evidence related to those will be separately provided by the Hearing Examiner. The time afforded, I think that it's at the discretion of the Chair how he wants to handle the time, and he had distributed a procedural outline to the attorneys in this case for purposes of efficiency. Cross-examination of witnesses: We haven't gotten to that issue, so it's a premature claim. And there were some cancellations of the advertisement for the prior scheduled hearing, and the reason that had to be done is that the county's procedure requires the approval of the appellant Exhibit B Page 8 of 103 who's paying for the ad, which we did not receive. And we did receive it late, and it was not legally acceptable so, therefore, we had to continue the hearing. And, in addition, the appellant doesn't get to pick a hearing date. That's determined by county staff, County Manager agency. I think I've addressed all the issues. If I missed any -- and as to the identification of the parties, the parties here today are the applicant, which is the property owner, ANK Crafts, LLC; the appellant is -- HEARING EXAMINER STRAIN: 3570 Bayshore Drive, LLC, I believe. MS. ASHTON-CICKO: Okay. And then the third party is the county staff. And I'm going to introduce into evidence the Chapter 9 of the Hearing Examiner, the Carillon County (sic) Residential Versus Seminole County case and, in addition, all the procedures that I've identified are consistent with our Code of Laws Section 2-83, the LDC 8.10.00, Chapter 9 of the Administrative Code, and our county special act Chapter 2001-345. So, thank you. HEARING EXAMINER STRAIN: Okay. Thank you, Ms. Ashton. Mr. Lewis, go ahead. MR. LEWIS: So we have addressed those -- we still maintain our objections. I don't want to spend time today delving into the advertisements that we had requested on the Site Improvement Plan approval that was -- the ad that was canceled by the County Attorney's Office without the client's permission or approval, but those are well documented. They are in the record. We just want to state that we respect and understand the County Attorney's position as it relates to due process. We still haven't waived them. We maintain them. Exhibit B Page 9 of 103 It is difficult, I will tell you, to prepare for the hearing when we don't know, for example, whether or not we're going to have the ability to do direct or cross-examination. So in that regard, I guess we've been told that that will be decided as we move through the process. I do say -- I will say that we do have some questions. If we're unable to ask the applicant or the owner, the property owner, questions today, I do have some questions that were simply not asked by staff, and I'd like to -- if we can't ask these questions, I think it will be helpful for the interest of the public to understand what's going to happen here, for the owner to address these. The questions we'd like to ask are, you know, what are the property owner's annual barrel projections, their production projections? How many barrels will be sold to distributed wholesale for off-site consumption? I have reviewed the CRA minutes. I'm not sure if many -- they might, but I haven't seen any public records that indicate disclosure by the property owner that many of these barrels will be sold and distributed off site for non-retail consumption. I'd like to know how many barrels they're going to do. Will the beer be bottled and canned on site? I think these are questions that, frankly, I'm surprised that staff didn't address in their due diligence that I'm aware of. I have asked staff for that information. We'd like to know what type of brew system the property owners are installing and also the capacity. Is it a seven brew, a 10, or 30 or more? Are they going to be capped? There's nothing currently in anything that -- other than square footage constraints that limits that. Will there be a fermentation capacity, and what is this Exhibit B Page 10 of 103 fermentation capacity? That will also impact the number of barrels. How many barrels, bottles, cans of brewed beer will be stored on the site? And what is the barrel storage capacity and the square footage designated for the storage on the property? It's difficult to tell from the Site Improvement Plan and the architecturals what they're going to do there. What are the hours of operation for the bar versus the industrial manufacturing on the property, the number of employees that will be there for the beer manufacturing business versus the bar business, copies of any distribution agreements. Will any of the SIC 5181 distribution occur in connection with the industrial manufacturing of beer? We don't have an answer to that. Have federal/state applications and licenses been applied for? And, frankly, can we get a copy of those prior to any determination by the Hearing Examiner as to the nature of the business being conducted on the property? Will other beers be sold, and will the owner sell -- and, again, this goes back to the interpretation question, but is it their intent to sell 51 percent of the beer produced on the property on site retail as an incident to the bar use, and then is their intent to have 49 percent of that being sold wholesale off site? Is that their intent? So I would respectfully ask, if we're not going to be entitled -- I certainly wasn't advised before hearing. And we've heard today that that will be decided. But I'd like to give these questions, if I can -- I have a copy of the questions that I can circulate and enter those into the record. HEARING EXAMINER STRAIN: Okay. Heidi? MS. ASHTON-CICKO: The appellant doesn't get to ask Exhibit B Page 11 of 103 factual questions of the property owner. That's going to be up to you as Hearing Examiner whether you want to ask those questions or the property owner whether they want to disclose that information. HEARING EXAMINER STRAIN: The property owner is represented here today, and we will find out how much the representative of the property owner wishes to disclose, and it's at their discretion. I think staff is comfortable with the issuance of the OI at this point. We'll talk further about the 51 versus 49 percentage issues and see where that goes. Those were questions I had as well, so we'll get into some of that. Some of your questions may be off, necessarily, the exact issue that we're here to discuss today, whether there is an industrial use or not. I'm trying to focus on that with Mr. Bosi when we get into our discussions later, so hopefully some of the questions you're asking may be answered in that due correspondence. MR. LEWIS: I appreciate that, and I think your instincts, I would say, are correct. I mean, our position has been and is that the industrial manufacturing of beer as defined by the SIC code that was set out in the zoning verification letter by the staff, that that use on the site as a permitted use, as a conditional use, or as an accessory use is incongruent with the Comp Plan, and we would ask certainly today -- and we'll be discussing it today in our presentation. Again, I'm hoping that this is not taking my time. We're dealing with these procedural issues, so this is not hopefully going toward my hour that I have to make my case. HEARING EXAMINER STRAIN: We'll provide some latitude, Mr. Lewis, but right now you've already started working into the hour. We'll see where it goes. We don't need Exhibit B Page 12 of 103 redundancy. We need to stay on topic. MR. LEWIS: I understand that. HEARING EXAMINER STRAIN: And as long as you're doing that and we're providing information that's new and useful, we're fine. MR. LEWIS: Yeah. And I just need to be able to prepare -- present my case and get the evidence into the record, so I appreciate your latitude there. All right. So we have our experts. Again, we need to qualify those experts. So, Attorney Ashton, what do you recommend? MS. ASHTON-CICKO: Well, you'll need to pro -- MR. LEWIS: There's a CV that we've attached. I can certainly qualify him at this point. I have a CV attached under Tab No. 24. And I'm happy at this point to qualify Mr. Stuart as an expert unless, to expedite time, the other property owner or the other party would stipulate to his qualifications. If not, I'm happy to come up and we can qualify him as an expert. HEARING EXAMINER STRAIN: I'll certainly take the information you provided on Mr. Stuart, which came in just now and it's rather lengthy, under consideration and render his expertise position later on. In the meantime, we can -- you can proffer him as an expert, and we can proceed under that premise. MS. ASHTON-CICKO: That's acceptable. MR. LEWIS: Okay. My preference would be to get that determination made now. HEARING EXAMINER STRAIN: I'm not going to sit here and read, what, 15, 20 pages. MR. LEWIS: If I can ask him some -- if I can ask him some questions, we can lay the foundation. HEARING EXAMINER STRAIN: I'll need to read what Exhibit B Page 13 of 103 you've provided first since you have provided it. It's going to be part of the record. I'll have to read the whole thing. MR. LEWIS: Okay. At this point, as related to your determination, does the other party to the case, do they have any objections to qualifying Mr. Stuart as an expert in the case? HEARING EXAMINER STRAIN: When they come up for their presentation, we can ask them at that time if that's appropriate, unless Ms. Ashton tells me differently. MS. ASHTON-CICKO: Well, the Hearing Examiner's already told you to proceed as if he's an expert, so I think you can proceed at this point. MR. LEWIS: The concern I have is that under the procedures, the rule procedure -- and I raised that in my procedural objections, is that we give an hour presentation, then we have the staff that's going to take another hour in opposition to our position, and then we have the applicant or the property owner that's going to make their hour presentation. We have the public here. We have a large number of members of the public. So that's multiple hours. And I am unable in my rebuttal -- I have a 10-minute rebuttal -- to introduce new facts into the record and, frankly, 10 minutes isn't enough time to address two-and-a-half hours of new information that I have to try to anticipate. So I think, from a due process point of view, my client would be impaired if we can't qualify him as an expert. I'd like to just note if they have any objections. MS. ASHTON-CICKO: Well, I think that the issue is whether or not -- excuse me. But I think the issue is whether or not the Hearing Examiner will accept opinion evidence from this person that he's proffered. So to the extent you'll accept opinion evidence and you'll weigh the evidence as part of your review, I think we can proceed. Exhibit B Page 14 of 103 HEARING EXAMINER STRAIN: He has -- he's going to be offering his opinions here today. I have no problem with that. Now, whether or not they're going to be considered expert -- you've dropped on this office today a one-and-a-half inches or two inches of information that has not had the ability to be read prior to the meeting. MR. LEWIS: Mr. Stuart's well known -- he's well known in the community. I can certainly qualify him. HEARING EXAMINER STRAIN: Well, if he's well known, I don't know him. I've seen -- his name's Greg Stuart. I don't know if we've ever met before. I've been working in the planning issues for over 16 years on public boards, so I honestly will have to take a look at the information. (Multiple speakers speaking.) HEARING EXAMINER STRAIN: Mr. Lewis, wait till I finish talking. MS. ASHTON-CICKO: Mr. Chair, I'd recommend that you go ahead, accept the opinion testimony, and you can -- as with any expert, you can weigh their credibility as -- you know, as to whether you think that you should give it great weight or not great weight, so... HEARING EXAMINER STRAIN: I have no idea what he's going to be testifying to as well, so his expertise is going to have to relate to whatever he is testifying to. He may be a brewmaster; I don't know. But those are issues that I'm certainly going to be trying to find out. MR. LEWIS: Sure. And in answer to that question -- it is a fair question -- he will be testifying as to land-use matters, and he's an expert in the area of land use, and we will proffer him as such, and I certainly respect however you decide to do that without waiving our position. Exhibit B Page 15 of 103 Okay. So we will present his testimony. We do have, just in the binder as well, under Tab No. 22, behind the case law, we have an attorney affidavit from Stephen E. Thompson. I have his resumO. He's a board certified real estate lawyer, and he's opining, essentially, that an accessory use is one that's incident and -- to a use permitted -- to a permitted use and does not permit the creation of an independent commercial enterprise such as the Site Improvement Plan contemplates as the applicant -- or the property owner contemplates, and that the creation of an independent commercial enterprise transforms an accessory use into a principal use, and he cites a Florida Supreme Court case, which I will get into as well. And I'd like to proffer that as expert testimony as it relates to the limits of an accessory use under Florida law. So with that, I will -- MS. ASHTON-CICKO: I did want to comment on that. I do know that Mr. Thompson is a real estate lawyer, but I am not aware that he's ever appeared before the Board of County Commissioners, the Planning Commission, or the Hearing Examiner in the capacity of land-use attorney. MR. LEWIS: I can represent as his law partner that he has appeared in the City of Naples, appears regularly. He was just there last week. In the early days -- he's been practicing in town for 30 years. My understanding is that he has, and I'm happy to supplement that after you can consider the evidence today. But my understanding is he has, certainly in the city. MS. ASHTON-CICKO: Because the City of Naples has a different code. MR. LEWIS: Certainly I can opine today -- MS. ASHTON-CICKO: They don't use our code. MR. LEWIS: I understand that. This is not code driven. His testimony is related to Florida law as it relates to accessory Exhibit B Page 16 of 103 uses. He's a very well-known developer of commercial real estate, Publix-anchored centers, and we're very familiar with the limits of what you can and can't do as relates to permitted uses, conditional uses, and accessory uses. It's part of the wheelhouse that we look at on a daily basis. So again we'd like to proffer him as an expert. MS. ASHTON-CICKO: That would be up to the Chair to make a determination. I mean, that's going to be up to you to make your determination based on the evidence they submit. Yeah, when we get to that expert, I don't know, you'll have to decide whether you want to accept it once you get the evidence. HEARING EXAMINER STRAIN: The book that you've provided today is going to be part of the record. I will review it as such, and it will be part of the outcome of the decision that's issued. MR. LEWIS: Thank you. MS. ASHTON-CICKO: But it's quite a lengthy package here. You haven't been provided this ahead of time, so... HEARING EXAMINER STRAIN: I'm not going to review it here today, no. It will be reviewed after -- the only time I can review it is after the meeting. MR. LEWIS: Certainly. And the procedures do allow, I think, 30 days to render your decision. HEARING EXAMINER STRAIN: That's right. MR. LEWIS: Under Tab 1, you can see the site of the industrial manufacturing site, brewery site. You can see on Tab 1, Page 3, you can see my client's properties, two and three, and those were -- those are also noted and located for your review. On Tab 2 we've included a copy of the Future Land Use Map. The second page is more of a blowup of the Bayshore mixed-use district for your review. I think we stipulated, I think it's undisputed, that the property is an urban designation. It's in the Exhibit B Page 17 of 103 mixed-use district. It's in the urban coastal fringe subdistrict, and it's in the overlay as well. So we just wanted to set that out. And our expert will discuss that further as it relates to the Comp Plan. The Future Land Use Map is provided under Tab 3. And you can see the C4 zoning designation. The second page of Tab 3, we actually provided you with a very helpful zoning map blowup depicting the brewery site and showing the overlay as well. My client's property is a mixed-use project, and it is consistent with the incentivizations and the intent under the Comprehensive Plan in the neighborhood commercial to incentivize pedestrian-friendly residential/commercial uses. On Tab 4 I wanted to note that the Future Land Use Element under Overview 1A states, quote, most directly, this element controls the location, type, and intensity and timing of new and revised uses of land, and I would say this controls the location of where we do industrial uses. Policy 5.4, all applications and positions (sic) -- this is Page 2 of Tab 4. All applications and petitions for proposed development shall be consistent with the Growth Management Plan. And under Policy 7.5, the county shall encourage mixed-use development. What you'll hear today is that although the underlying C4 bar use can occur, the Comprehensive Plan intent is to incentivize redevelopment of pedestrian-friendly mixed-use. So you can either have it in the same building or multiple residential combined with commercial, but that's -- and the overlay -- the neighborhood commercial overlay expressly implements this policy, 7.5. Turning to Tab 5 under the definitions, I just wanted to make it clear that when we talk today about accessory uses, it must be both incidental and subordinate to the principal use. That's Tab 5, Page 1, and that's consistent with Florida law. There's no real Exhibit B Page 18 of 103 incongruency. It must be both incidental and subordinate. And I would like to encourage us to think about the significance of incidental, because it has to be both, versus subordinate. And to get into a subordinate relationship where you have a primary use versus a use that is not as prevalent, that does not address the incidental test. And it's a two-part test. And so you could, for example, have a permitted use on the property that does more business than the other multiple permitted uses on the property. It's very common to have multiple uses occurring on a property. They are still permitted uses, and they are not deemed accessory uses, and the fact that you do more volume in one business versus another does not somehow transform a permitted use to an accessory use. So I wanted to make sure that we understand the definition. Incidental, as defined by the Supreme Court, would mean that the use is one that is directed specifically -- it's not an independent business. So the example would be if, for example, you have a restaurant in a hotel that only serves the hotel guests, then that restaurant would be incidental to the hotel. But if that hotel began to, for example, advertise to the public or operate independently of the hotel where a commercial restaurant is not permitted in that zoning district in a residential or hotel district, then the courts have determined that that then is not an incident. And you can have a portion of the food business that is dedicated to, you know, serving guests. But when you begin to advertise, you begin to distribute or -- distribute would be this case. But when you either advertise or bring the public in to the restaurant that are not guests of the hotel, the courts have said that is not an accessory use. That now becomes a permitted use, or you're transforming it into a permitted use and a lawful use. Exhibit B Page 19 of 103 Tab 6 is the C4 designation. I just wanted to mention that the C4 designation under Tab 1 typically uses the 1987 SIC classification. Staff has opined in the zoning letter that under Item 48, which is the drinking establishments -- and the SIC code for that is 5813. It's disputed in the zoning letter that this is a SIC code -- that the SIP that they're seeking is certainly what they were asking for at the time of the zoning verification letter -- is a 5 813 drinking establishment. That's what that is. Now, I provided definitions of what a SIC code drinking establishment is. That's helpful to find, and you can see that in your tab under Tab 17. A drinking establishment is for retail consumption on site. It's not for wholesale distribution. It doesn't allow bottling, packaging, cans, whatnot. It's retail on site. So I think the challenge they're going to have today, frankly, and I think the legal requirement, is they're going to have to show how wholesale manufacturing -- wholesale, not retail, for off-site consumption is an incident to on-site retail consumption. But the SIC code that they're going to be relying on to do that is under C4. And our expert today is going to testify that you can't get an accessory use -- the only accessory use in the neighborhood commercial -- neighborhood commercial under the overlay -- the only accessory use that's nonresidential that's permitted there is storage outdoor. And, specifically, in that overlay, they identify -- and you'll see the tab if you look under the overlay for the Bayshore Drive mixed-use district -- and that would be Tab No. 7. Why don't we just go there real quick. As we talked about, the purpose is to encourage a mix of low-intensity commercial and residential uses including mixed-use projects and single buildings. So the intent is to create a Exhibit B Page 20 of 103 pedestrian-friendly -- and I see members of the Board of County Commissioners here. I think they understand that that's the intent is to create a pedestrian-friendly residential environment. That's not what this is. I mean, it is relying on underlying zoning, but that's not what this is doing. If you flip over to Page 3, on Page 3 of Tab 7 you'll see Roman Numeral 2A. It says, the table of uses identifies permitted uses, accessory uses, and conditional uses. Now, there is no akin to the C4 where they talk about accessory uses that are subordinate and incidental. There's none of that in here. They just lay out what are the permitted accessory uses. And, in fact, under 2B it says any use not listed is prohibited -- is prohibited. So there's no misunderstanding. And, by the way, there's been no determination that -- and there's been no request that I'm aware of that the manufacturing of beer for distribution and consumption off site is akin to outdoor storage. I think that would be ludicrous. But outdoor storage is the only -- the only nonresidential accessory use permitted in that overlay so, therefore, they are not able to bring this in through that overlay. Now, how does that interplay? Well, if you look at Tab 7 -- and this is an important provision under 2.03.07.3.B. Property owners within the Bayshore mixed-use district may establish use, densities, and intensities. So here they're trying to establish a use. So they can do that in accordance -- they have two options. Option A, in accordance with the underlying LDC, which is C4. That's what they did with their zoning verification letter. They tried to get that approved. Now, we disagree with staff on that, but that's what they tried to do. And staff said, you can bring it in C4 as an accessory use is what staff said, or they can bring it in it -- it says, or under the more -- or maybe elect to Exhibit B Page 21 of 103 develop under the provisions of the applicable BMUD subdistrict. Now, they haven't -- they're not bringing in any sort of multi-use, you know, residential mixed-use project. They're not looking to do that, so -- and they can't bring this as an accessory use under that. So they're -- they are trying to bring in industrial manufacturing of beer as an incident to what permitted use -- it's also tied to a permitted use. And the permitted use here is a drinking establishment, which is for on-site retail consumption. So I don't know -- and that's why we're scratching our heads. I have no idea how they're going to be able -- and don't let them divert you from the real issue, but I don't know how you can articulate a reason why wholesale distribution of product, how that is an incident to -- which is all off site, packing, distribution, all that, how that's an incident to on-site consumption. HEARING EXAMINER STRAIN: Mr. Lewis, when you had sent your email out yesterday, one of the points you made is that you would prefer, if I could, to hold off my questions till the end of your presentation. MR. LEWIS: Yes. HEARING EXAMINER STRAIN: So my reluctance to speak out as you've brought issues up is not because I agree with you or disagree. It's simply I'm going to try to hold off until you finish. So I just want you to know that, for the record. MR. LEWIS: I appreciate that. All right. So let me just address a couple of things. I did see -- and then I'll have our expert come up. I did see several emails, and I want to commend the property owner. They've done a great job rallying the community. I'm not sure how many of the members of the community understand the commercial nature of what they're doing. They may be -- some may be supportive; Exhibit B Page 22 of 103 some may not. But I tried to essentially summarize what the residents were saying as it relates to the project. The first thing that they articulate is that the owners brought -- they bought the property in reliance on the zoning verification letter. So I want you to start -- let's start with that. And the zoning verification letter is under Tab 9. So in that letter -- this is back in October 2nd, 2015. Now, again, I don't know this to be fact, but what I'm seeing in those letters is the implication that they were potentially under contract or they were considering the purchase, and then they made the decision to buy it in relation on the letter. I don't know that. We'll hear that later perhaps. But they asked staff if they could do a lounge, really, basically a bar, that they could do an accessory microbrewery, an accessory. They didn't ask for a permitted or anything like that, or conditional, but an accessory. So they knew that. They didn't ask -- for example, when they came in later for the project description, they asked for industrial manufacturing. They were going to redevelop it as basically an industrial manufacturing, which is completely disingenuous from what they said -- that was in 2016 -- from what they said back in October. Then they said, tours of the brewery, which is fine; neighborhood gathering, fine; live music, fine; food, fine; and then they -- sale of T-shirts, whatnot. So staff, in their analysis, says, look, this looks to us like -- under the SIC classification, or the C4, this is a bar. What you've described is a bar. It's a 5813 bar. That's what you've got. And then staff says that we're going to allow the manufacturing of beer on a limited basis, but it needs to be an accessory to the bar. To the bar. Again, the bar is a retail on-site consumption operation. That's the business. Exhibit B Page 23 of 103 So you're producing beer for retail use on the site. That's where you get into, you know, how much -- what's the volume? Are you doing 3,000 gallons a year? Are you doing -- or barrels? 10,000? What are you doing? Is it enough to just take care of what the people need when they come to the bar, or are you going to become a wholesale business? The staff further went on to say that the brewery, as they characterize it -- which is a C4 classification. It's not a classification under the neighborhood mixed-use commercial because it can't, as we talked about. A C4 classification, they said that, as a use on the property, as a permitted use -- it's not a permitted use, and it's not a conditional use. So I think we're all in agreement there. So, really, the sole question for you to look at is under C4. Does C4 allow a microbrewery, a brewery, basically, industrial manufacturing of beer. Do they allow that -- is it permitted to occur on the site under C as an accessory use? We say first the Comp Plan says absolutely not. You can't do any industrial per the Comp Plan. As an alternative, if you disagree with that or if later the courts disagree with that interpretation, then the analysis would be it certainly has to be both subordinate and incidental, which I don't know how they're going to be able to articulate how -- you know, as we talked about, wholesale distribution off site as incidental or as incident to your retail operation. So the property owners are saying, look, they got a zoning letter. You know, I understand that. They relied on it. And I understand that. That's part of the talking points. But I don't think they're aware of these facts. Now, there's also a clear recognition of under Florida law that you can't rely on promissory estoppel to cure ultra vires acts of Exhibit B Page 24 of 103 government officials. So if the courts conclude that the county's Comprehensive Plan does not allow industrial manufacturing of beer as a permitted, conditional, or accessory use, because it is fully incongruent with the Comp Plan, then the estoppel letter does not amend the Comprehensive Plan, and it doesn't make an unlawful use lawful. In other words, you can't amend your Comprehensive Plan through a zoning verification letter, and that makes sense. That's why the courts have a very long line of Ultra Vires Act. I'm sorry that the mistake was made, but you can't amend your Comp Plan. The front door approach would be to do a text amendment or to amend the Comp Plan to allow for industrial uses, which has not occurred. Now, the second class of arguments is that -- well, let me continue with this as well. Assuming that it's later determined that industrial manufacturing of beer can be an accessory in C4 to a permitted use and the owners were notified in their zoning verification that a brewery is not a permitted use on the property and that any manufacturing of beer must be incidental and subordinate to the retail sale of the premises -- in fact, the letter even goes on to say that it needs to -- let me get the exact wording. It's on Tab 9 -- needs to be accessory on a limited basis. That's the language under -- on Page 2, Tab 9. Staff says, accessory on a limited basis. So as such, the owners were on notice that they could not engage in the business of wholesale distribution of beer for off-site consumption. Now, despite this clear disclosure in the zoning verification letter that manufacturing of beer is prohibited, on July 21st -- and this is important -- 2016 -- I don't know if the residents are aware of this, but the owners, they filed a Site Improvement Plan, and they Exhibit B Page 25 of 103 were seeking approval of, quote, industrial manufacturing of beer and related uses with site work. Now, I want you to turn to -- Tab No. 10. So in 2016, in July, they came in, and they knew that they couldn't do this, and they said, Dear Mr. Paul, the above-referenced projects consist of a 6,000-square-foot building renovation for industrial manufacturing of beer and related uses. Now, why would you do that? You knew -- and the residents seem to think, well, they relied on the zoning letter that told them that they -- you know, as we went over that testimony. So why do owners do this? Well, they do this because later they want to estop the government -- and I've seen case law. I mean, I'm very familiar with the law on this -- from enforcing their zoning ordinances by asserting that approvals were given -- I've seen lots of land-use lawyers in town use this -- the prior approvals done way back when were given for that use, and they were approved. And it's all part of the development order approval. Look over at the next sheet, Page 2. You'll see -- this is on the GMP public portal. I printed it back in March 2017, 6,000-square-foot building for manufacturing of beer and related uses. Industrial manufacturing of beer. That was in March of 2017. And, by the way, I know in the staff report there's discussion about, well, it's really now a bar, and this is just -- this is just accessory. It's just a small piece of it. But I've looked at the layout. It hasn't really changed from the original submission. There really has been no significant change, and I'll show you -- there's pictures of that as well here in a minute. Let's turn to the Site Development Plan, which is on Page 3. I did a blowup on Page 4. This is a blowup. This is the approved Site Development Plan, and they're showing only 22,000 -- or Exhibit B Page 26 of 103 2,245 -- 2,245 square feet of tables and chairs. That's for their bar. The rest is kitchen. They have storage, which I presume that's -- and if you look at the -- there's some other exhibits here. If you look at the square footage, it looks to me like that's all going to be part of the brewery. They do have some business area. Maybe you divide half of the business for one business, one for the other business, but these are independent businesses. So it's not fair to attribute all that business area to the bar. And I'm sure they're going to be -- you know, they're going to use that for their -- they have to have some office for their wholesale distribution off-site business. Storage, and then they have business area, and then they have kitchen. You know, the kitchen, I'm presuming they're using that -- they're not really producing food under their Site Improvement Plan. They're just bringing in packaged peanuts and things. So I don't know what -- so it's really -- my assumption is that's going to be for -- until established, it's for the manufacturing. If you flip over -- keep flipping -- there's -- several pages into this it's actually a different sequencing of the numbering, but it's going to be 4 and 5 as you flip back. But I want to look at this 5. This is part of the -- so you have -- the first stack was for the Site Improvement Plan. The second stack is for the architectural. They did an alternative architectural submission, design submission. And this is part of the approved document that's -- you know, the county's approved it. We're appealing. It says, this project is an application for additional renovation of an existing metal frame structure. It is located in Collier County, Bayshore Drive Gateway District. The project will consist of renovations to a 6,065-square-foot existing structure into a microbrewery, industrial manufacturing of beer, that conforms to Exhibit B Page 27 of 103 the C4 and BMUD and C zoning district. No, it doesn't. HEARING EXAMINER STRAIN: Well, just I don't want to -- I'm trying not to interrupt you until you finish, but you just read something that isn't in this document. It says on the third line, project will consist of renovations of 6,065 square feet of the existing structure into a microbrewery that conforms to the CB MUD district. You said microbrewery that is industrial zoning. Where did you get that information from that's not on this? MR. LEWIS: Because the staff opined -- that's a fair question. HEARING EXAMINER STRAIN: But were you reading -- you're trying to tell us what this page says? Because if you did, that's not what the page says. MR. LEWIS: Okay. So the text says "microbrewery." HEARING EXAMINER STRAIN: Okay. MR. LEWIS: The analysis is that -- in the zoning verification letter the staff said what is an accessory microbrewery? They said that the -- that the analysis and the interpretation letter, the staff has concluded in their interpretation letter that that is -- the closest use to that is an industrial manufacturing of beer and that that's not permitted. HEARING EXAMINER STRAIN: Okay. MR. LEWIS: It's an industrial use. HEARING EXAMINER STRAIN: Doug, I'm not going to belabor this any further. I simply wanted to point out, if you're going to read something that's supposed to be text supplied and approved by the county staff, you need to read it accurately and stop inserting editorials. MR. LEWIS: Hopefully, when we go back and look at the tape, I said structure into a microbrewery that conforms. I am Exhibit B Page 28 of 103 equating, by my own analysis, that when you approve a microbrewery, what is a microbrewery? What's the closest -- because it's under the C4. So we have to look for SIC code. What is the closest SIC code that would align to a microbrewery? HEARING EXAMINER STRAIN: That's something we're going to get into before the -- go ahead. MS. ASHTON-CICKO: Mr. Chair, as you know, this is the appeal of the OI. The time frame to appeal the zoning verification letter expired long ago. So we're here on the OI appeal, official interpretation appeal, and the appeal of the Site Improvement Plan. MR. LEWIS: Just so we're clear on the record, we are not appealing today the zoning verification letter. The courts could decide as to whether or not that is ultra vires or not, but as it relates to the Comp Plan. But as it relates to the appeal of the Site Improvement Plan, we are saying here that they've -- in the project summary it's describing an existing structure into a microbrewery -- it doesn't say bar -- with an accessory microbrewery. HEARING EXAMINER STRAIN: That's fine. I'm only asking, if you're going to read something from the text that was approved and reviewed by staff-- MR. LEWIS: The staff says a microbrewery. HEARING EXAMINER STRAIN: -- the text that's there. That's all I'm asking. MR. LEWIS: Thank you. Yeah, the text says a microbrewery. I will maintain that the only use that could, under the SIC code, code system that we have, the only use that's the closest proximity to that -- and staff has concluded with that -- is an industrial manufacturing of beer use, so that's what we're -- that's my analysis. Exhibit B Page 29 of 103 Okay. What I'd like to do is, at this point, introduce -- have Greg come up. He's going to walk you through the Comp Plan and some analysis, and I'll turn the time over to him. Then I have some concluding remarks. HEARING EXAMINER STRAIN: Thank you. Mr. Stuart, if you don't mind, just give me a very brief part of your background that's included in, I'm assuming, the dozen or 15 pages that were submitted with this packet. MR. STUART: Yes, Mr. Hearing Examiner. Good morning. HEARING EXAMINER STRAIN: Mr. Strain is fine. MR. STUART: Good morning, Mr. Strain, counsel, staff. Good to see you again, Ray, fellow members of the audience, and counsel. Greg Stuart, for the record, of Stuart & Associates Planning and Design Services. My office is in Fort Myers, 7910 Summerlin Lakes Drive in Fort Myers. As just a quick overview, as for educational qualifications, my bachelors of arts is from the University of Florida in urban studies with high honors; my masters is in urban regional planning, full HUD fellowship. My post-graduate work, I was a fellow at the Danish Academy of Fine Arts in their College of Architecture, and my specialty was urban design. I've been practicing for a little over 30 years. I've practiced in -- I have had experience in 14 Florida counties, including Collier. I've done a lot of work in Collier over the years, both in permitting, project management, real estate analysis, that type of thing. I've been qualified in a Lee County Circuit of Florida Appellate and Seattle -- actually, King County, Washington, as an expert. I've probably had around 120 to 130 judicial and quasi-judicial cases. Exhibit B Page 30 of 103 My qualifications are in Growth Management and land-use planning, urban design, real estate development, and analysis and comprehensive planning. HEARING EXAMINER STRAIN: Okay. And I have just one question. MR. STUART: Yes, sir. HEARING EXAMINER STRAIN: In the years that you've been practicing, how many cases have you presented or been part of that have been in the public testimony in front of the boards in front of the unincorporated area of Collier County? Not including the City of Naples; the unincorporated area. MR. STUART: Sure. Let's say the -- excuse me -- the Vincentian PUD, which now is an overlay mixed-use district; the PRC&M PUD, which is off-- near Radio and Davis; Sierra Meadows PUD, which is off of Rattlesnake Hammock and Collier Boulevard; the Edison Village PUD. Yes, sir. HEARING EXAMINER STRAIN: Did you work on these, or did you actually provide public testimony in front of the Planning Commission and the Board of County Commissioners? MR. STUART: Yes, both. HEARING EXAMINER STRAIN: I don't remember you. I'm sorry. MR. STUART: I remember you, though. HEARING EXAMINER STRAIN: Your name -- MR. STUART: Well, I probably had more hair then. HEARING EXAMINER STRAIN: And I probably always had this much hair, and that's why people tend to recognize me. I'm sorry, I did not recognize your name when you were first introduced, so I appreciate that. MR. STUART: No, but I have, and then also, just as an anecdote, in the -- a while back I was doing a lot of work with the Exhibit B Page 31 of 103 Collier County Attorney's Office in their County Barn Road improvement project, the Golden Gate flyway project and some other right-of-way combination cases. So I've had working experience in the county, certainly. HEARING EXAMINER STRAIN: Thank you. That's what was important. I appreciate it. MR. STUART: Okay. Then my presentation in chief, I'll try not to cover the points that counsel covered. Again, the underlying zoning is C4 and, again, they're seeking a 5813 drinking place and with an accessory microbrewery to that. According to the files that I've read, they're looking at around 150 customers in terms of seating occupancy and capacity. Total occupancy at 168. There's a discrepancy in the facility size. I've seen two sets of numbers. One total at 6,000 square feet with 2585 feet, which is equal to 43 percent, that number would be for the manufacturing of the beer, and then another which was from the October 16th alternative architectural submittal. The number came out to 6,047, of which 48 percent equaled to 2,914. So either number, my conclusions are the same, but I wanted to point that out because I'm not sure exactly how much. There are a number of unknowns, as counsel pointed out, in terms of barrel capacity, fermentation capacity. The licensing, no information has been permitted. As one example, I am an owner -- it's coincidental, but I'm an owner and partner of a microbrewery in Orlando, downtown Orlando. It's the Orange County Brewers located on Jefferson and Orange in Downtown Orlando. In addition, I'm part owner in a pub. When we had to go through the permitting process, staff wanted to see copies of all of our license applications to get a handle on some of the knowns and unknowns that we're dealing Exhibit B Page 32 of 103 here, and I just point that out. That information is not in the file. So here we are. If I can make just two overriding points: Manufacturing is not permitted in this land use, the urban coastal fringe. It's not. Manufacturing is an industrial use. Manufacturing is not a residential use. It's not a commercial use, retail use. It's not civic or institutional use. It's not a recreational use. The only use that manufacturing fits into is -- manufacturing, that is, is industrial. Whether it's light industrial or heavy industrial, that remains to be seen. If you look at the Collier County Comp Plan as in Exhibits 1, 2 and 4, again, it's in the urban -- the property's in the urban coastal fringe within the urban mixed-use district, and then there's the Bayshore mixed-use development overlay. If you look at the Comp Plan, it's very clear. It says, industrial manufacturing uses, such as the manufacturing of beer, is only permitted as a permitted accessory conditional use in urban industrial districts, urban commercial districts, and in some interstate interchange activity centers. Those are the three land uses. If, in fact, this was a legal use, then there would be some type of language saying, in the Bayshore overlay element -- well, you know, and we also will allow for some select light industrial uses. There's a complete absence of language. You have to take the Comp Plan explicitly, you know. Again, there are three land-use categories that allow for this. And, also, if you look at Subparagraph 7, the mixed-use residential district, counsel point out that the purpose for mixed-use districts is to have more pedestrian-oriented neighborhood type uses. A pub or a restaurant or a bar or neighborhood uses absolutely. Possibly even a microbrewery that serves the customers maybe, a -- may be a neighborhood-type use, Exhibit B Page 33 of 103 a pedestrian-type use. But when you get into the wholesale of such product, it is no longer a neighborhood use. It's clearly a light industrial use because it's manufacturing a product for the general public, and I'll expand on that in a little bit. If you look at Paragraph F, the Bayshore/Gateway Triangle Redevelopment Overlay, which is in Exhibit 7, again, it goes into the intent and the purpose of-- you all are very familiar with it more so than I because you live in the neighborhood; you deal with this. So I don't need to read verbatim. My point on that is when you go through that section, again, it doesn't identify any type of manufacturing or light industrial uses. It just doesn't. There's an absence of language. In order for this to go forward on a legal basis, there's no doubt in my mind that there's a -- that there needs a text amendment to the overlay language in the Comp Plan to then implement the type of distribution oriented microbreweries that I believe the applicant is seeking. When you look at, again, Subparagraph 7 of the Bayshore/Gateway Triangle, it gets into the properties are allowed to use the underlying zoning district if they don't choose to go forward with the mixed -- the Bayshore mixed-use development standards, and that's what we have here, it's my understanding, and from the review of the file it is my clear understanding that they're relying on the C4. They're not relying on the Bayshore mixed-use development standards. And, again, when you read that, it doesn't state that the introduction of new uses under existing zoning are allowed. I mean, you have to go through a standard public-hearing process, you know, with elected officials voting. I mentioned the Comprehensive Plan. I think that's a good case in point. Exhibit B Page 34 of 103 And, again, as counsel pointed out, the mixed-use development is inherently oriented; the goal is to try for pedestrian-friendly neighborhoods and the like. So, again, the urban coastal fringe land use is oriented towards -- towards the restaurant -- or the bar, but not towards wholesale distribution of the product that's going to be coming out of the microbrewery. Basically, the project's requested accessory use, as currently defined, a condition, again, is not attempting to incorporate Bayshore mixed-use development neighborhood community objectives. It's not trying to promote neighborhood interconnection and pedestrian access and mixed uses. And, again, the manufacturing of this product is not consistent with the Comp Plan. Only in the industrial, general commercial, and some select interchange areas can you have that. So going into the actual code, if you look, I mean -- and, again, it's obvious. You know, the code has to be internally consistent with the Comprehensive Plan. It can't go asunder. It can't be parallel to it. It has to fall under it. The Comp Plan is a lead document. So if you look at the Bayshore -- under a 2.03 -- excuse me, 2.03.07.4.a.i, under the Bayshore Drive Mixed Use Overlay Neighborhood Commercial Subdistrict, the purpose and intent of the subdistrict is to encourage a mix of low intensity commercial and residential uses. And it doesn't say low intensity commercial and residential and industrial and manufacturing uses. It's just commercial and residential uses, and then it goes on to describe those types of uses. Furthermore, when you get into actually the use category and table, which is 2.03.07.4.b, which -- let's see, I think that's in Exhibit 7. Anyway, under -- it allows for, under retail and restaurant, it allows for this, okay. It allows for the rest -- or, Exhibit B Page 35 of 103 excuse me. I keep saying "the restaurant." It allows for the bar, pub, and, you know, if they want to morph into a restaurant, it allows that. The table of uses are real clear. And then when you look at 2.03.07.4.b.i.f, it goes on, manufacturing, wholesale, and storage, and it says under this subdistrict: Premises available for the creation, assembly, storage, and repair of items including their wholesale retail use. Staff pointed that out in their staff report. But then it defines those uses, Mr. Hearing Examiner. It defines the uses as six: Labs, laundry/dry cleaning, media production, metal product fabrication, repair shops, and R&D -- excuse me, seven, seven uses. HEARING EXAMINER STRAIN: Actually, I think there's nine. MR. STUART: Then I missed -- HEARING EXAMINER STRAIN: Well -- MR. STUART: Then which ones did I miss, Mr. Hearing Examiner? HEARING EXAMINER STRAIN: The printout that I pulled from MUNI code this morning, just to try to get the most recent, it has 1 through 9. But I'm not sure what you're reading from. MR. STUART: MUNI code online. I must have missed that then. HEARING EXAMINER STRAIN: It's probably something. MR. STUART: Okay. HEARING EXAMINER STRAIN: It may not be that relevant, but I was just -- MR. STUART: I hope not. But of those uses, metal product fabrication clearly is a light industrial manufacturing use that's not allowed; possibly even Exhibit B Page 36 of 103 repair shops. It depends on what is being repaired, of course. So here you have a very unique situation that the code is not consistent with the Comprehensive Plan, because the Comprehensive Plan, again, allows for these types of light industrial manufacturing uses in three categories, yet the Land Development Code allows for one or two. So certainly I would encourage you to look at that, because I think that needs -- that needs to be stricken, the Land Development Code needs to be amended, or the Comprehensive Plan needs to be amended to allow for that. But right now, you know, strictly speaking, it's not permitted. So looking at the staff report -- and I will say -- because, you know, on the face value, when I took a look at the case, wow, this is really neat. You know, I mean, I'm an owner of a microbrewery. It's a neat use. You know, neighborhood pub. You have -- we have 10 different types of beers. I mean, what's not to like? I mean, but if you start dialing into this issue and really look at the bigger picture, there are a number of issues that are of very serious concern, and they all relate to, again, the wholesale distribution of the product. So staff, basically, has a number of points, four major points. The first point is that the subordinate relationship is evidenced by the percentage of building square foot dedicated to the drinking component versus the brewery component. And, again, that's where you have either the 2,585 or the 2,985. So somewhere between 43 percent and 48 percent. It's still under 50 percent so, therefore, it's subordinate and, therefore, it's a permitted accessory use. But the issue really is Comprehensive Plan consistency and whether the Land Development Code identifies as a permitted, as a conditional, or as an accessory use, whether it's specified, and it Exhibit B Page 37 of 103 does not. The second point with staff is traffic counts. A subordinate relationship is established by the traffic counts. I think they had -- I forget the total number, but six p.m. peak hour for the distribution component. But, again, it's the wrong merit and, also, it's important to point out that the TIS doesn't take into account potential storage capacity, because if you have storage capacity, it's -- you inherently do not have a lot of trucks coming in and out because you're storing it on site, and then you could have one truck. So, again, it's not indicative. There's no causality. The third point is that a subordinate relationship is evidenced by the direct interconnection with the beer garden as a source of the beer product, and that is correct as it pertains to the consumption on premise. But my testimony, in addition to the comprehensive planning consistency is that, you know, this is not just on-premise consumption, you know. It may be shipped out, and then it's wholesale, and it's a different game. As counsel said, if you look at the BMUD-NC category, the only legally permitted accessory use is open storage. And there's, you know, the documents there. And, again, based upon the definition, and in order to be consistent with both the code and, more important, the Comprehensive Plan, the bar has to be the sole source of the beer consumption. It has to. It has to be consumed on site. In our particular case with Orange County Brewers, yes. We also sell Growlers, you know, 16-, 32-ounce jugs, if you will, people -- you know, you buy the jug, you buy the beer, take it home. But that's not what we're talking about. We're talking about wholesale distribution. So, again, when you look at the subordinates by the interconnection, yes, on the small scale, but if you step back and if Exhibit B Page 38 of 103 they start selling at -- and I'll get into this right now, the 49 percent ratio, then it's not an accessory use. Staffs proposed condition to try to make sure that this stays as a legal accessory use is to limit the gross sales to 49 percent or less of the total sales, and there's monitoring involved, annual monitoring. But the standard, again, is not relevant. I mean, what they're saying -- what the condition says is that if you have a hundred dollars a sale, a $2 difference makes all the difference between having it as a permitted use by right versus a legal accessory use; a $2 difference. It doesn't work like that. A $2 difference doesn't differentiate a permitted use from a legal accessory use. It doesn't work. It's the wrong -- it's the wrong metric. HEARING EXAMINER STRAIN: Mr. Stuart? MR. STUART: Yes, sir. HEARING EXAMINER STRAIN: Are you basically claiming, then, that a microbrewery or anyplace that brews beer is considered an industrial use? MR. STUART: Yes, yes. HEARING EXAMINER STRAIN: Okay. So the people that create home craft beers in residential neighborhoods in their garages and stuff, you would consider that an industrial use? MR. STUART: If they are selling their product, that wouldn't be allowed. That wouldn't be permitted as a home occupancy. HEARING EXAMINER STRAIN: Let's back up, though. What constitutes the industrial use? Is it the production of the beer or the sale of the beer? MR. STUART: Actually both. HEARING EXAMINER STRAIN: Okay. So if someone produces beer, the method by which they sell it would be the trigger by which you would think it's an industrial use versus a Exhibit B Page 39 of 103 nonindustrial use? MR. STUART: If you're using someone in their garage with -- HEARING EXAMINER STRAIN: I just say any quantity, because your -- I'm trying to understand what is your trigger for saying it's industrial versus a craft component, like a specialty craft market of some type. Maybe not related to beer, but there are other crafts out there that are produced and sold on premises. Even pizzas are produced in pizza ovens and sold, and a lot of those are in deliveries. MR. STUART: Yes. HEARING EXAMINER STRAIN: How do you differentiate this as industrial use versus those uses, similar uses? MR. STUART: Well, pizza would be classified under the food/restaurant food service type categories, which would be retail -- HEARING EXAMINER STRAIN: Right. MR. STUART: -- versus this is as manufacturing. It doesn't fit anywhere else. HEARING EXAMINER STRAIN: But it's manufacturing because you believe it's sold wholesale? It that how it hooks together for you? MR. STUART: Well, it's sold wholesale maybe. Because, again, there's -- the information's rather thin. But the actual plant, the physical plant, is a manufacturing plant. You cook the hops, you transfer the hops into the fermentation, you ferment for two weeks, you then stream it into a -- into your barrels and refrigerated areas for on tap or for off sale. You always end up pressurizing and pressure cleaning the type of vats to make sure you meet various health and safety standards. It is a manufacturing -- it's a manufacturing process. Exhibit B Page 40 of 103 HEARING EXAMINER STRAIN: But if this wasn't selling wholesale and they were manufacturing, as you want to term it, on site to sell within the building, they wouldn't be considered industrial; is that your position? MR. STUART: No, because the -- I take a strict constructivist position on the Comprehensive Plan, and the Comprehensive Plan calls out three areas for industrial/manufacturing, and in this particular case if they wanted to have that, you need a text amendment for the Bayshore mixed-use district, so... HEARING EXAMINER STRAIN: And that's another point. I understand now why you referred to six uses in the manufacturing wholesale segment of the table. There are nine listed, but only six are relevant; only six are permitted. So now I think we're working from the same table. MR. STUART: Thank you. HEARING EXAMINER STRAIN: You just didn't count -- if you had said there are nine and only six, I would have understood it better. I thought you were looking at just six. In those six, when you did your analysis -- and the reason I'm asking you questions now it's wrapping up to over an hour. MR. STUART: Yes. I'm very sorry. HEARING EXAMINER STRAIN: We're still going to go through this. I'm not going to cut you off. I just want to finish up with some issues I need to resolve. How did you determine -- maybe you or the applicants -- the legal counsel. I noticed that you're insisting there are no industrial uses allowed in the Bayshore area. How did you determine that? MR. STUART: Well, by policy, by reviewing of the Comprehensive Plan, not in regards to -- HEARING EXAMINER STRAIN: Well, the Bayshore Exhibit B Page 41 of 103 overlay is part of the Comprehensive Plan. MR. STUART: Yes. By reviewing the Comprehensive Plan. HEARING EXAMINER STRAIN: The Bayshore list of elements that you've pulled out of the tables and the LDC, which has been deemed to be consistent with the Comp Plan, allows manufacturing and wholesale, and it lists a series of 1 through 9, of which six of those are allowed. MR. STUART: Yes. HEARING EXAMINER STRAIN: Have you checked the SIC codes that attach to each one of those uses to determine what other zoning districts they're allowed in within Collier County? MR. STUART: No. I was really focusing in on the uses that, you know, would be, at least to my professional opinion, evidence of manufacturing. So those were the uses. HEARING EXAMINER STRAIN: Okay. So you really don't know if any of those other six uses that are permitted under the manufacturing and wholesale section of the Bayshore overlay are, in fact, not found in an industrial category in Collier County? MR. STUART: I haven't done that analysis, sir. HEARING EXAMINER STRAIN: Okay. And this is just a sidenote. You mentioned your operation in Orlando. Just out of curiosity, is that a -- do you actually produce beer there on that location? MR. STUART: Oh, yeah. It's a microbrewery. We have a -- we have a -- excuse me. We have a seven-barrel system with a 14-barrel fermentation ancillary system. And we opened this past August, and we're looking at around 2,000 barrels annually. HEARING EXAMINER STRAIN: Are you -- what zoning are you in, that location, do you know? MR. STUART: The Downtown Orlando has a -- has a -- it's Exhibit B Page 42 of 103 an overlay for entertainment, special uses. It's -- I would have to get back to you in terms of the specific -- HEARING EXAMINER STRAIN: What's the name of the company? MR. STUART: Orange County Brewers, B-r-e-w-e-r-s. You can Google it, go online. HEARING EXAMINER STRAIN: Just out of curiosity, I will. Thank you. MR. STUART: And, look, I'm not standing here saying I am an expert in production. I'm just saying that I have working knowledge in this. You know, I was involved in the finance and stuff. And so when I see the setup, yes, it's manufacturing, you know. I mean, it is what it is. HEARING EXAMINER STRAIN: The storage capacity, you mentioned that the additional storage capacity would have an impact. Why is that a concern? MR. STUART: Well, it's not a concern per se. Staff was using traffic counts as a metric to substantiate that it's subordinate. And my point is the traffic -- and I'll elaborate on this in just a bit. But traffic counts -- if you have ample storage, then -- and, again, it depends on the production. It depends on the volume. But if you have storage, then you, inherently, may not have that many truck trips at all because you're storing the product on site. HEARING EXAMINER STRAIN: Right. And limit your trips then by -- MR. STUART: Yes. HEARING EXAMINER STRAIN: So that's a bad thing? MR. STUART: No, I'm not saying it's bad. I'm saying that staff-- if you look at the staff report, they're using that as evidence of a subordinate relationship. And my point is that it's not evidence of a subordinate relationship. They're using the wrong Exhibit B Page 43 of 103 metric. HEARING EXAMINER STRAIN: Are you aware of the comparable/compatible language in BID and, basically -- it's actually, no, b.i.f. If it says -- I'm sorry, b.ii.b. I'll get it right yet. It says, any use not listed in the table of uses is prohibited unless the County Manager or designee may determine that it falls within the same class as a listed use to the process outlined in LDC Section 1.06.00, rules of interpretation. MR. STUART: Yes. HEARING EXAMINER STRAIN: I believe that is the section that was followed for what brought us here today. So -- MR. LEWIS: Let me handle that. HEARING EXAMINER STRAIN: And staffs OI is what is part of the appeal that's being here today. Doug? MR. LEWIS: Yeah. Let me address that. We vehemently reject that analysis. And I would say that the zoning verification letter that staff opined that in that letter, they described the business as most similar to that of a bar under the SIC 5813. And they said that the remaining uses could be accommodated on a limited basis as being accessory to C4 permitted bar. The zoning verification letter does not say that the remaining uses can be accommodated under the BMUD-NC, so I want to make sure that we start with the history first, and that's the zoning verification letter back in 2015. In that opinion it was tied to the C4 accessory. They did not make an opinion there, a determination. A key reason why they didn't make that opinion is that the only nonresidential use permitted in the BMUD-NC is outdoor storage. That's the only permitted accessory use, period. That's not debatable. Exhibit B Page 44 of 103 Under the maximum espresso unis est exclusion alterius, which is Latin -- my kids take Latin at MCA. I don't speak Latin. But, basically, what -- the legal principle is that when there are more things of a class that are expressly mentioned, others of the same class are, by inference, excluded. And so in the zoning verification letter, the staff said, you can do this, in essence, through the C4 as an accessory use, and they understood that the only nonresidential accessory use under the Bayshore mixed-use NC overlay permitted is outdoor storage. The owner understood this before they purchased the property, and they didn't appeal the zoning verification letter. Further, in connection with our official interpretation request, we didn't even ask the staff to opine specifically as required under your interpretation section to make a determination under 2.03.07.i.b.ii.b, whether an accessory brewery falls under a similar use category -- accessory use category like outdoor storage. I don't even know how you could make that request, because the only accessory use that's permitted there -- because we've already said it's not a principal use, not a conditional use. We didn't request that. And I don't want to be argumentative -- HEARING EXAMINER STRAIN: But I think you started out by indicating, or maybe your planner did, that the underlying zoning of C4 is still an option on the property, and this would be, then, considered -- I think staff was trying to place this as an accessory use to that original zoning underlying category of a drinking place. MR. LEWIS: The zoning verification letter made a determination that you could -- which we think is ultra vires -- that you could have an accessory -- again, very -- accessory, very incidental, not substantial, to a bar under the C4. They did not opine in 2015 that you could bring this in under Exhibit B Page 45 of 103 the overlay, and the reason for that, frankly, speaks volumes, because the only permitted -- the only accessory use that's available for a nonresidential development in that overlay is outdoor storage. HEARING EXAMINER STRAIN: But why would they need to bring it in through the overlay if they can bring it in through the underlying zoning? MR. LEWIS: Well, we reject that position. I just was addressing -- HEARING EXAMINER STRAIN: No. I am not taking a position they're right or wrong. I'm simply asking the question. If they can bring it in under the existing zoning, what would they need to worry about bringing it in under Bayshore overlay for? It would be irrelevant at that point. MR. LEWIS: My comments that I just made to you was in direct reaction to your statement that this was -- my understanding of what you said was that this was -- this determination under 2.03.07.i.b.ii.b. So my comments were limited to that. As to your question -- HEARING EXAMINER STRAIN: Okay. MR. LEWIS: -- now, which is a different question, I would say, look, I mean, staff is entitled to their opinion. We think that that was an ultra vires determination. But I want to be clear that that was a determination under the C4, not under the overlay. HEARING EXAMINER STRAIN: Okay. Understood. Mr. Stuart, how much time do you need to finish up? MR. STUART: Five, eight minutes more; five to eight minutes. HEARING EXAMINER STRAIN: Okay. Let's limit it to that, and then I'll have some remaining questions, and we'll finish up after that. Exhibit B Page 46 of 103 MR. LEWIS: I just need to address that. I have information that I need to put into the record to preserve my client's case. So I would ask, as a matter of due process, that I'm afforded the opportunity. I have some case law, some precedent, interpretations the county's already set that's very relevant that I need to get into the record. HEARING EXAMINER STRAIN: Is it information beyond what you've already provided -- MR. LEWIS: Yes. HEARING EXAMINER STRAIN: -- in this hearing binder? MR. LEWIS: It's new information that I have not been able to -- HEARING EXAMINER STRAIN: Is it going to be provided in hard copy, or are you suggesting -- MR. LEWIS: I'm going to -- yes, I'm going to provide it to you in hard copy and verbally. HEARING EXAMINER STRAIN: Okay. Well, hard copy. We'll see how much time's left for verbal. Go ahead, sir. MR. STUART: I'll try to be quick, Mr. Hearing Examiner. Okay. Getting into the heart of the staff report. The staff, when they say the BMUD, neighborhood community permits manufacturing, wholesale, and storage, yes, it does, but when -- again, when you look at the code, they're using C4, and we've discussed that. So I just want to be clear, and I believe counsel said that. When you look at the staff statement that the manufacturing uses that are listed are also C5 -- so it kind of justifies their interpretation, but in this particular case a hierarchal zoning interpretation is not applicable because the specific accessory uses Exhibit B Page 47 of 103 are identified both using the C4 and also using the Bayshore mixed-use development. So it's not applicable. And, basically, I have to point out that the reason why it's not applicable is that when you have a Land Development Code, it has to identify your accessory uses. It has to identify your conditional uses. All those uses are identified for predictability and equal protection. The official interpretation appeal, the heart of our appeal also, is that -- is that it's not -- the interpretation is not consistent with the Comprehensive Plan. So even if you have the ability to interpret and bring in a new conditional use or a new accessory use, it still has to be consistent with the Comp Plan, and in this particular case it's not. Okay. The staff-- the BMUD neighborhood community allows for a wide variety of uses, residential, commercial, and relies on use groups and not SEC (sic) classifications. Heck, I've covered that. I don't need to go into that. Well -- and getting into -- okay. But let me finish up with two points. Both -- the square footage. You know, it's subordinate because it's smaller than the permitted use. You know, again, it's the wrong metric. And, as an example, you could have a resort hotel and spa, okay. The spa component is also a permitted use along with the hotel. The spa footprint is far smaller than a hotel footprint, but it's a permitted use. So there's no real nexus between floor area and whether it is a legally permitted accessory use and a permitted use. So, again, that's why I was saying it's the wrong metric. Another example, when you look at the traffic counts, again, it's the wrong metric. Using orthopedic practice, there are orthopedic practices that -- you know, they all -- most orthopedic practices have a physical therapy capability. Some have now Exhibit B Page 48 of 103 opened up the physical therapy to -- a wellness spa to the public, and so when you have -- when you evaluate traffic, well, you know, the traffic still is far, far greater for the orthopedic use than for the use that's open to the public. And my point is, traffic, again, is not the accurate metric because you can have -- you could have permitted -- legally permitted uses by right, you know, with huge discrepancies in your traffic counts, which we have in here. And then when you look at -- finally, when you look at the gross sales, it's very important. Again, the gross sales aren't a metric. The application was thin. I have no idea, ultimately, what, you know, production buying, what capacity, how much expansion they're planning for, because if you look at the site plan, there's areas stated for expansion. Plus, from my experience with the Orange County Brewers, when I look at the site plan, they've got plenty of space. I mean, we're doing 2,000 barrels plus in almost a third of the space. So, again, it's hard to get my handle on that. But, again, a percentage of sales is always used for COP-type uses, for state, you know, liquor licensing. But they're using a state liquor license standard and criteria to try to separate what is a legally permissible accessory use from the primary use. And, again, it's just the wrong metric. The big picture -- and I'll wrap up. The big picture is this: I mean, everyone here, I'm sure, wants this microbrewery. They want a local beer tavern. I can understand that. But the big picture is that if you allow staff interpretation to stand, then -- using an example, Glassworks. You have a really nice Glassworks. Glassworks is an industrial manufacturing use. They manufacture vases and trinkets and all kinds of really nice -- glass babies, that type of thing, and they sell retail, Exhibit B Page 49 of 103 storefront. But, over time, let's say, if they have the capacity, they dialed into an Internet provider, Amazon or something, and then they start wholesaling these glassworks to Amazon. So then what you will have is a legitimate accessory use that ties into the retail storefront, and then it morphs into a wholesale business, which is not. And so there's a big picture here. And I can go through -- I mean, leather products. It's the same thing. So there's a big-picture issue here that I wanted to emphasize. I'm running out of time. So thank you. HEARING EXAMINER STRAIN: And I understand your emphasis, but I've got a question. You said all accessory uses must be listed. The storage, outdoor accessory uses listed in the Bayshore may have been there -- and I'll get the Collier County zoning manager or zoning director to opine on this eventually -- that may have been there simply to acknowledge that that's now an allowed use within that particular area, not that is the only accessory use to all those other six allowed principal uses. For example, we have taverns, and other places might serve food. If food's not the primary use, it would be a secondary use. The primary use would be the beer and tavern. It would be under a 5813 instead of 5812 or vice versa. We've had this happen in Collier County before; Stevie Tomatoes was a prime example. It was an area up in North Naples. They were operating as a restaurant, but they were making -- I think -- we had to verify that they weren't becoming a bar, and we used that metric to get there. MR. STUART: My point -- and I'll conclude with this. The interpretations to allow for uses not listed have to be consistent Exhibit B Page 50 of 103 with the Comp Plan. It's that simple. And in this particular case it's not. HEARING EXAMINER STRAIN: And in your opinion it's not consistent. We'll hear more from county staff and others today. Thank you. Doug, how much time do you need to finish up? MR. LEWIS: I want to first address your comment -- I think it's important -- because I want to make sure you're aware of the language. And I think it's a fair comment. Under the interpretation of tables -- this is on the overlay -- it says, blank sales -- sells, meaning there's no information indicated. Use is not allowed in the corresponding subdistrict; however, such use may be permitted in the underlying zoning designation. So they understand that just because you don't list something there, if it's a blank sell, for example, that the underlying zoning may permit it, but it says, uses -- a use not listed is prohibited. So that's really -- in answer to your question, the only accessory use that's permitted in that -- in the overlay is the outdoor storage. Tab 22 -- just so we can be -- expedite our time. This is a really important -- another example. He talked about Glassworks. This is the example of the high capacity storage tanks. And I would submit that, you know, when we start to, for a particular person, provide special accommodations and when we disregard the law, that gets problematic, and there's unintended consequences. One of the consequences -- there's a staff clarification that was issued under SC 0605. This is a perfect analogy. So what you had going on out in the Estates is you had people that were getting these big high-capacity fuel tanks, and they were saying, well, wait a minute here. You're bringing these 500-gallon tanks Exhibit B Page 51 of 103 that you're using to fuel your accessory use lawn business. And, in addition, what you're doing is you're using some of those tanks to take care of your home needs, which is understandable. So the staff correctly drew the distinction between what's accessory to the principal use, meaning this is -- the high-capacity storage, this is an accessory. The 250 gallons is what they figured was an amount, a quantity. So you could say 15 -- you know, a thousand barrels is what they're going to consume on site. That -- they can brew that if that's your determination; there's no Comp Plan violation, and you can do it under the C4, if that's your conclusion. Then consistent with this you would say, okay, well, you could do a thousand barrels produced that you're going to use for retail purposes on premise, but the excess capacity that you're providing is not accessory. And so in this staff clarification they said, for purposes of the classification, high capacity tank is defined as any tank -- THE COURT REPORTER: Can you slow down. Sorry. MR. LEWIS: Yes -- in excess -- I apologize. I'm trying to expedite the time to get my case on the record. But 250 gallons of fuel. So that was a limit that was set by staff. The staff then said, this amount should be sufficient to power lawn tractors, lawnmowers, chainsaws and other motors used as an incident -- again, it needs to be incidental and subordinate -- as an incident to the single-family home. And, by the way, that's very consistent with the Florida Supreme Court case that's in your packet, the Third District cases that make a very clear line about what is permitted -- what's an accessory use. Consistent with that, staff correctly ruled in 2007 that this percentage of the storage capacity is an incident to the single-family; however, the fact that the code allows home Exhibit B Page 52 of 103 occupations employing heavy vehicles and equipment, others accessory uses powered by gasoline/diesel does not justify the storage of large amounts of fuel in support of the home occupation. So, again, that's not incident to the permitted use. I wanted to make sure -- because you'd asked the question before. If you look at Tab 11, or Tab 14 as it relates to the interpretation letter, I think it's really important as staff observed that the proposed brewery use is most similar to a brewery described under SIC Code 2082. Now, how do we get that inference? If you look at Tab 14 -- HEARING EXAMINER STRAIN: Doug, you've got five minutes to finish up, so one way or another, let's just finish. MR. LEWIS: Okay, thank you. It says -- it says, the allowance of a microbrewery, on site brewing of beer. Again, they're tying that back up to the statement above. It says, the industrial manufacturing of beer more typically known as a brewery, SIC Code 2082. That's staff determination, which I think is the correct determination that what they're doing is an indust -- the SIC code for 2082 is industrial manufacturing of beer. That's -- and that was not appealed by the property owners. So the allowance of this industrial manufacturing of beer associated with the bar -- they use the term "drinking establishment," just so we're clear. The language says "drinking establishment," but I think what they said earlier was a drinking establishment is tantamount to a bar, which is for retail on-site consumption, is an accessory use that's directly related to the principal use. And our clear testimony is the only way you can get there is through the C4. And the final thing I wanted to mention was that if you look at the case law that's provided -- and there's an attorney opinion there Exhibit B Page 53 of 103 as well -- there's several cases, but there's really a two-part test. And this is the Turnberry case. This is Third District Court of Appeal. This is where you had basically a place that was zoned for residential. There was a hotel spa, swimming pools, and whatnot, and they were seeking to have a medical group provide services to not just the residents but the community at large. And the Court said, to be accessory it must benefit the property residents and -- and there's an "and" part -- not be available to the general public at large. So it's got to be contained on the site, and it's incident to, which is the clear law. In fact, if you look at the -- another Third District Court case says, if you want to look at Basset's work on zoning, he summaries that many ordinances have elaborate statements regarding accessory buildings, but they can usually be reduced to a prohibition of business, and that's what we're talking about. When you engage in a separate, distinct business of manufacturing and distributing for off-site consumption, that is in no way incident to a bar, in all fairness. And I think the courts understand that, and so there's this two-part test. And the Court said, that's the law. Now, in this case, in the Tumberry case, they said, well, it's not even close here because, again, that's the law. The facts were that most, if not all, serve the general public. That is what the law said. Now, the law -- it could have been 20 percent of the volume or 10 percent, didn't matter, because you can't -- it cannot be available -- the law says it cannot be available to the general public. That's consistent with the Florida Supreme Court case that my partner cited in his opinion. HEARING EXAMINER STRAIN: You have two minutes, Doug, to finish up. Exhibit B Page 54 of 103 MR. LEWIS: Two minutes, all right. Just quickly, the owners raised some other questions about the project being delayed. You know, we filed our appeal. We were trying to get this before the BCC back on September 12th. We spoke to the owners back in May 2017. We asked them if they'd agree to limit manufacturing of beer for retail on site, consumption only, and they wouldn't agree to that. That's in the tab. That's Tab 20. There were concerns about the owner might abandon or might walk away. Well, the zoning letter back in 2015 put them on notice that a brewery is not permitted on the property as a permitted use or as a conditional use, and manufacturing beer must be incidental and subordinate to the retail sale of beer on the premise. So they knew that. So why did the owner buy the property? And why didn't the owner look for an industrial-zoned site? I understand the job issue. I get that. It's all good, but that doesn't justify the problems that we're going to create by undermining the Comp Plan, the Land Development Code, and undermining specific precedent and zoning opinions on this issue. Also, this is not the mixed-use project that we're encouraging. I think that's clear. This is not the type of project that we're looking for, and it's certainly permitted; I understand that. If there's a desire to bring this use into the Bayshore redevelopment overlay, then they should work, you know, to amend the Comp Plan and address that, and there could be a larger discussion, and the community can weigh in. We can have it go through the front door and not provide special favors to a very popular, you know, owner. I will note, at the very end, just to be expeditious on time, I did put in there a list of proposed conditions to the SIP approval, Exhibit B Page 55 of 103 and those are in your binder. And we've asked staff to look at those, we've asked, you know, certainly for the applicant, conditions to ensure that if you find that the Comp Plan allows as an accessory to C4 this use, then we would say these conditions would be designed to ensure that's what happens, and those conditions are found in your binder -- under Tab 20 in your binder. And we've also asked for certain modifications. That's the very first page in Tab 20, or Page 1 through 3. Page 3 is the actual specific proposals, and we've asked for certain modifications to the interpretation letter. And that really concludes my presentation. HEARING EXAMINER STRAIN: Thank you very much. And with that, we're going to take a -- yes. Go ahead. MS. ASHTON-CICKO: Mr. Chair, I do have two comments to make that you need to be aware of The Tab 23 that has the staff clarification, you need to be aware that the Board of County Commissioners directed that in order to be official, all staff clarifications had to be approved by the Board. I can't tell you right now whether this is an official interpretation. We can look into it and let you know; otherwise, it's just an internal staff memo. And then the second issue as to the conditions that were presented yesterday to Mr. Bosi and Mr. Scott for consideration at this hearing, because the property owner, who's the real party in interest here, was not party to these discussions of the conditions, I told staff that they should hold off, and those issues should be addressed today at the hearing rather than out of the hearing yesterday. HEARING EXAMINER STRAIN: I'm assuming Mike -- I did not see those. Mike, are you aware of what Heidi just mentioned? MR. BOSI: Yes, Mr. Strain. Exhibit B Page 56 of 103 HEARING EXAMINER STRAIN: Okay. You'll be up next, and you'll be able to at least address those. MR. LEWIS: And thank you for that, Heidi. I appreciate that. If I might as well, I can provide a supplement, as well, to you as you evaluate the merits. I can provide a supplement as well, if that's okay, on the 0605 interpretation. HEARING EXAMINER STRAIN: I can't accept anything after today's hearing in regards to the decision. MR. LEWIS: Okay. That's fine. And I would just, again, object on the record -- HEARING EXAMINER STRAIN: I will be able to weigh that accordingly. MR. LEWIS: Because there's information coming in after the hearing that I'm not able to address, so I just would -- as a due process matter -- HEARING EXAMINER STRAIN: I won't be able to accept anything after this hearing today. MR. LEWIS: Okay. I'll just object on the record. I appreciate that. Thank you. HEARING EXAMINER STRAIN: Okay. With that, we are going to take a break till five minutes of 11, and we'll come back at that time. About 15 minutes. (A brief recess was had.) HEARING EXAMINER STRAIN: Okay. If everybody will please take your seats, we'd like to resume the meeting. Ladies and gentlemen, if you'll please come in and sit down and stop talking. Thank you. With that, we'll resume the meeting. We left off with the presentation by the appellant and some questions that I had. We are going into the presentation by county staff. The appellant did Exhibit B Page 57 of 103 have one expert witness testify today. I'll open the -- let the county staff know that they're able to cross-examine that county -- that particular expert witness before you're done with your presentation. Mike? MR. BOSI: Thank you, Mr. Strain. Mike Bosi, Planning and Zoning director. Before I get into the specifics of my case, I did want to provide to the court reporter a number of emails that I have received post the distribution of the packets to the Hearing Examiner -- these have been provided -- just to complete the record. HEARING EXAMINER STRAIN: Thank you. Do you have copies for others here, or just the one for the court reporter? That's -- if that's all you've got, we'll make that work. MR. BOSI: I have one other set of copies of the individual emails. First, let me -- again, Mike Bosi, Planning and Zoning director. I've been in that capacity for five years for the county. Fifteen years total as either a principal planner or community planning manager, comprehensive planning manager, or the overall planning and zoning director. I received a masters degree from Georgia Tech University in the mid '90s, worked within the communication industry for four years before I began my career with Collier County. So close to 20 years of experience within the field of planning; am a certified planner by the American Institute of Certified Planners as well, just to proffer my experience within the field of planning. And, also, from a procedural standpoint, I wanted to clarify, per the Land Development Code, Section 106.019, the County Manager or designee shall have the authority to make all Exhibit B Page 58 of 103 interpretations of the text of this LDC, the boundaries of the zoning districts on the official zoning atlas, and to make all interpretations of the text of the GMP and the boundaries of the land-use districts and the Future Land Use Map, and I would be that designee as the Planning and Zoning director, just for clarification purposes. HEARING EXAMINER STRAIN: Thank you. MR. BOSI: Today's hearing is based upon two appeals that were submitted. One to an approved Site Improvement Plan, and the second was to an official interpretation. The first appeal is the SIP appeal, and there's two primary questions that were the basis of that appeal, and they're highlighted. First, that the industrial manufacturing of beer and related uses within the site work as described on Exhibit A cover letter as filed by the property owner within the Site Improvement Plan application is not a permitted use of the property and that industrial manufacturing of beer is not a principal, accessory, or conditional use that can occur on the property as expressed by the appellant. Second, within the appeal of the OI is that within the Bayshore Mixed-Use Triangle Redevelopment Overlay, they do not include industrial manufacturing of beer or any other type of industrial uses whatsoever as their first claim and, second, that industrial manufacturing of beer, more typically known as a brewery, is an industrial use that is not permitted on the property and is not permitted as a principal, conditional, or accessory use. Those are the questions that are being asked of this appeal hearing. What I heard today, which was surprising -- it was proffered by their expert witness -- was that the Bayshore mixed-use district overlay within our zoning code was inconsistent with our Growth Management Plan. Now, I don't -- as I was listening to that, I went through the Exhibit B Page 59 of 103 appeal for the SIP and the application for the OI appeal, and never was it ever suggested that there was an inconsistency between the adopted Land Development Code overlay and the Growth Management Plan. So in terms of those questions, I'm not going to address. I'm going to assume that our adopted Land Development Code is consistent with the Growth Management Plan, and my focus will be upon the questions of whether a restaurant with an accessory microbrewery is a use that's allowed for within the -- within the C4 zoning district or the Bayshore mixed-use neighborhood commercial overlay district. HEARING EXAMINER STRAIN: Now, Mike, I didn't interrupt the previous speaker at his request during his presentation. Would you prefer I ask questions as you move along or I hold my questions until you finish your presentation? MR. BOSI: You could ask questions at any time, Mr. Strain. HEARING EXAMINER STRAIN: Okay. Was the Bayshore overlay reviewed and approved by staff, both comprehensive and zoning, was it reviewed and approved by the Planning Commission, and it was reviewed and approved by the Board of County Commissioners? MR. BOSI: At the time of adoption, it was, yes. HEARING EXAMINER STRAIN: And with the uses that we've seen today under previous submittals -- we talked six out of nine uses in the manufacturing wholesale section -- were all those part of that approval process? MR. BOSI: Yes, it was, Mr. Strain. HEARING EXAMINER STRAIN: Thank you. MS. ASHTON-CICKO: Mr. Chair, for clarification -- HEARING EXAMINER STRAIN: Yes. MS. ASHTON-CICKO: -- of the record, so that we have a Exhibit B Page 60 of 103 record of this, the land planning agency and the Board of County Commissioners are required to make a consistency determination with the Growth Management Plan at the time that they adopt the Land Development Code regulations. HEARING EXAMINER STRAIN: And that's my purpose of getting Mike to at least confirm that was done and the process was followed. Thank you. MR. BOSI: The next overhead exhibit that I have is directly from that Land Development Code and the Bayshore Mixed Use Overlay District. The Bayshore Mixed Use Overlay District sits within 2.03.07, which is the overlay zoning district of our Land Development Code. 2.03.07.I.3.b specifically states that property owners within the Bayshore mixed-use district may establish uses, densities, and intensities in accordance with the LDC regulations of the underlying zoning classification or may elect to develop -- redevelopment under the provisions of the applicable Bayshore mixed-use district subdistrict. And in this subdistrict, we deal with the Bayshore neighborhood commercial. The second section that I have, 2.03.07.I.4.b indicates that -- the uses that are allowed for within the Bayshore mixed-use district overlay. The first is a, is residential, the second is lodging, the third is office, the fourth is retail and restaurant, the fifth is entertainment, the sixth is manufacturing, the seventh is civic and institutional, and the eighth is infrastructure. Those are relevant because those are the range of land uses that are provided by the Bayshore mixed-use district. And if I was to characterize the proceedings and the guidance that staff utilized to make their determination it would be two words: Scale and focus. Because I think scale is relevant to the operations that are provided for within the beer garden and accessory microbrewery, and focus. And I say "focus" because if you look at the Exhibit B Page 61 of 103 applications for both the OI and the SIP, there's a focus upon the C4 zoning district. And staff, in staff review of the uses that are permitted, feels that that focus is misguided, that the focus should be on the Bayshore mixed-use district neighborhood commercial overlay. And why do I say that? Further within the Bayshore Mixed Use Overlay District, within the table that describes the uses that are contained within any one of the neighborhood districts -- and the focus of our attention would be on the mixed-use side, highlighted, the neighborhood commercial. That's the second to the last of the allowance. And it goes through. And the first page it lists your typical dwelling units, single-family duplex, row houses, multifamily as permitted uses, and then we go to the second category which was lodging. Within there, hotels and motels are permitted uses. Conditional uses would be bed and breakfast. Then the third grouping would be your office and service, and there's a wide range: Banks, credit institution, government services, medical services, personal care, post office, professional office service. It continues on and allows for rental services, studio, veterinarians, video rental, and then goes onto the next category which is retail and restaurants. I think the second listing within there, your bars, tavern, and nightclub is squarely the permitted use that is the primary use of this property. And it goes through another listing of retail and square footage limitations within your general retail and how that works. The next group is your entertainment: Galleries, museums, meeting facilities, cultural community facilities, theaters, recreation facilities, amusement indoor, community garden. And then it goes to the next grouping, and that's your Exhibit B Page 62 of 103 manufacturing: Metal products and fabrication is one of the permitted uses; laboratories; laundries; metal -- warehouses; repair shops; storage outdoor; and the one I found most interesting was research and development. And why do I find that interesting? Is one of the things that you'll notice, that there's no SIC codes that are associated with these groupings. They're open. They are a large umbrella of activities. So if I was to try to make a determination of a use underneath one of these umbrellas, how would I go about determining that as the administrator of the Land Development Code? Collier County's Land Development Code traditionally uses the SIC code approach to designate what land uses would be provided for. This a little bit more flexible. It's a redevelopment area. It's a mixed-use redevelopment area, and I believe that flexibility was specifically intended within these groupings. So what I did is I went to the SIC code website, and it's SIC code -- SlCcode.com. And, basically, the first search that I performed was research, and it had a list of SIC codes for various kind of land uses that would be provided for underneath that permitted -- permitted land use of research and development. And one said space research and technology. And then you went down, and it's aircraft engines and engine parts. It's guided missile and space vehicles. So I was satisfied with that. So then I went to research -- or I went to development. So within the development SIC location lookup, metal mining surfaces was one of the ones I thought as rather intense from a land-use perspective. Again, the guided missile systems, the space vehicle parts, your wholesale trade, air and water research, and solid waste management. And I thought those were pertinent; those were pertinent to the type of land uses that were allowed by this individual zoning district. Exhibit B Page 63 of 103 So, finally, I said, the umbrella category that we were looking at is research and development. Why not -- why not input research and development within the SIC directory search? I put that in, and if you can see at the very top, that's the second page of 25. I have 23 pages of individual land uses that were provided within that search. What I found as extremely interesting, that if you look underneath the SIC code lookup for research and development, on Page 24 of 25, 2082, malt beverages. That's a brewery. 5181, beer and ale. That is packaging of beer and ale manufacturing. So based upon a traditional premise towards how an applicant could make a presentation or the case for a use that could be provided for, this approach could find both the manufacturing of beer as well as the restaurants being provided as permitted uses within that individual zoning category. HEARING EXAMINER STRAIN: Mike, in regards to that issue, that under the research category this pops up as those SIC codes that could apply, you've already opined through the OI that's in discussion here today that 2082 would not apply. MR. BOSI: Right. HEARING EXAMINER STRAIN: How do you differentiate then between those issues that theoretically would apply by the broadness umbrella format of the language in the Bayshore versus the more specified application that's more, let's say, practical for that neighborhood; how did you do that? MR. BOSI: As I stated, I said there were two words that were really guiding our determination, and the first was focus, and that's about where the zoning focus was, whether it was C4 or the Bayshore mixed-use district, and then the second was scale, and it is scale. And it's the scale of the operations in subordination to the primary use of the property that allowed me to make that Exhibit B Page 64 of 103 determination that a use category that could be argued could be permitted, could be accommodated within an accessory capacity to a principal use that has a direct relationship to that principal use. And that was how that determination was arrived upon. HEARING EXAMINER STRAIN: Thank you. MR. BOSI: And I know within the expert testimony there was a discounting of some of the factors that staff utilized to make that determination of insubordination -- or subordination, I'm sorry, and they discounted trips, they discounted square footage, and they discounted sales as inappropriate ways to gauge that relationship, even though from a planning standpoint, we would traditionally utilize those as some of the primary means to gain an understanding of intensity and a relationship between activities. And if you look at the trip generations report that was supplied for the SIP, 47 total p.m. trips were generated by this facility; three of them were allocated to the light industrial activity for the manufacturing of beer. That's 6 percent. That's 6 percent of the trips generated by this facility would be associated with that manufacturing activity, which is a permitted use group within the Bayshore mixed-use neighborhood commercial subdistrict. HEARING EXAMINER STRAIN: Well, how -- if this is the limitations and the research technology analysis you previously put up indicated 2082, and I now know you don't approve of that because of the OI, but how far could this go before it reached a threshold, either the TIS or the use, before it reaches a threshold that would be prohibited, that would be broaching that 2082? Is there a trigger that you see, or is it just something that would be based on -- MR. BOSI: Well, 2082 is an establishment that primarily operates as a brewery. This facility primarily operates as a beer garden. Exhibit B Page 65 of 103 HEARING EXAMINER STRAIN: Is the accessory use considered then a -- it's not considered a primary use? MR. BOSI: It's not considered a primary use. HEARING EXAMINER STRAIN: Okay. Thank you. MR. BOSI: The second aspect of the determination that's subordination was related to the square footage limitations. And just remember, outdoor storage is one of those facilities or one of the accessory uses that could be provided for. This proposed architectural renderings will show you -- shows the front end of the individual -- of the proposed brewery. Remember, this replaced that Small Engine World, and that Small Engine World is allowed by code to store engines, equipment, whatever they need outside of their facility, and it's deemed appropriate by this individual -- by the individual overlay. The proposed use in regards to its impact, its visual impact upon the surrounding property owners in my regard, from my professional planning opinion, is a great improvement to the visual quality and the overall impression that the area will be provided with this. And towards the end of the architectural renderings, it has a allocation of where the -- and it's over to this side is where the front end of where the Bayshore or the front facing the road system is, where the public gathering aspect would be, and the back area here is where the brew operations are provided for. That's another -- that was another factor utilized to establish that subordinate relationship. And then, ultimately, we suggested that a sales limitation be placed as 49 to 51 percent to ensure that that subordinate relationship can be maintained. So three individual factors that we arrived -- that we utilized to try to justify and establish what that subordinate relationship will be. HEARING EXAMINER STRAIN: Mike, in establishing Exhibit B Page 66 of 103 that subordinate relationship, at the time that you were writing the OI, did you anticipate either off-site activity with the remaining 49 percent or wholesale activity? MR. BOSI: There was -- when I wrote the OI, the official interpretation, there wasn't a direct contemplation of the off-site, but in constructing the staff report for the appeal, I recognized that microbreweries can have off-site activity, and based upon limitations of what that could be, I was comfortable in providing for that limitation that only 49 percent of sales could be related to off site. HEARING EXAMINER STRAIN: So with that limitation, do you feel comfortable that the activities on that site could never broach the threshold of being an industrial operation under the 2082 section of the code or SIC? MR. BOSI: If those -- if those relationships are maintained, I believe that it never becomes an establishment that is primarily engaged in the production of malt beverages. HEARING EXAMINER STRAIN: Thank you. MR. BOSI: And, finally, this is from our Growth Management Plan. This is the Bayshore Mixed-Use Triangle Redevelopment Overlay. There's two areas where it talks about intent, and intent matters, especially when you're dealing with the Growth Management Plan and the Growth Management Plan subdistrict. I'll read you the first of the intent. The intent of the redevelopment program is to encourage the revitalization of the Bayshore/Gateway Triangle redevelopment area by providing incentives that will encourage the private sector to invest in the urban area, and the second intent statement is, intent of this overlay is to allow for more intense development in an urban area where urban services are available. Exhibit B Page 67 of 103 And I believe that the intent of the overlay is met with the specific application of the SIP and the determinations that have been provided for within the OI. And with that, I'm happy to respond to any questions you may have. HEARING EXAMINER STRAIN: Okay. I do have a few that I didn't ask already. There's issues of capacity that are involved in the accessory use. The TIS was submitted. You put that on the screen earlier. How was the TIS determined to be a limitation, and how strong of a limitation is the TIS in regards to how does it get changed? How could they expand with that TIS on record? MR. BOSI: Well, they would have to change the -- if they were to change the configuration of the interior space, they would have to submit for a building permit, and that building permit would be reviewed by our site -- or development review staff, and at that period in time they would be able to make a determination as to whether the square footages have changed within the proposed beer garden and accessory microbrewery. And within the SIP, I believe there was conditions placed that that subordinate relationship has to be maintained. HEARING EXAMINER STRAIN: Right. But as far as the TIS goes, once a TIS is submitted as a document for staff to make a decision on when they issue such a -- like an SIP, is that TIS locked into those standards or those thresholds that are placed on that TIS, or is it a flexible document? MR. BOSI: The trips associated with it are locked into what's being committed to for that -- at that submittal. HEARING EXAMINER STRAIN: Okay. Did you ever get into a discussion about the amount of production that the facilities approved in the SIP could produce as far as either barrels or kegs or however that -- I think it's barrels is what they generally Exhibit B Page 68 of 103 go by. MR. BOSI: No. HEARING EXAMINER STRAIN: Okay. If barrels were introduced as a threshold, do you see an issue with -- do you see that as an assist to make sure that we don't go beyond a threshold that would produce more than what you would anticipate at that location? MR. BOSI: I would agree with the appellant that that is most certainly a rational nexus to be able to control that subordinate relationship. HEARING EXAMINER STRAIN: When you did the OI, the questions you specifically answered related to industrial uses, and I believe in the OI's language the accessory part of it was still considered industrial, but it wasn't to the threshold of the 2082. But wouldn't it be more of a -- would you consider it more of a commercial use in relationship to the drinking establishment rather than an industrial use that, according to the SIC manual 2082, it's titled establishments primarily engaged in manufacturing of malt beverages. An accessory use, by your definition, can't be the primary element. So if it can't be, how would they ever meet that threshold? MR. BOSI: Maybe I didn't follow the question. I don't think they could. HEARING EXAMINER STRAIN: Well, that's exactly what I was -- that's what I was expecting. I just wanted to make sure I was thinking correctly. If they're primarily a beer production operation, then they would fall under 2082, but as long as they're accessory to another one and they haven't reached those thresholds that you've reviewed the OI by or the thresholds that can be placed on their operation, they may never get to that primary Exhibit B Page 69 of 103 production. MR. BOSI: Correct. HEARING EXAMINER STRAIN: You do agree that 2082 is not allowed in the overlay, right, based on your OI? MR. BOSI: Yes. HEARING EXAMINER STRAIN: Why does the -- and I think you've said this, but I just want to make sure. The overlay does not use SIC codes, and that was intentional? MR. BOSI: I was not involved with the individual adoption of that overlay. I can only make that assumption that it was because of the flexibility that it does provide for within the determination of the range of uses. HEARING EXAMINER STRAIN: The use of sales figures to establish the accessory versus primary use, have we used that before in Collier County? MR. BOSI: We have used it before. I can -- I will have to do a little research to give you the specific cases where it's been utilized to establish those thresholds. HEARING EXAMINER STRAIN: But it has been used before? MR. BOSI: Yes. HEARING EXAMINER STRAIN: How does the scale of the microbrewery drinking place we have here limit its external influence? For example, we know a 2082, an Anheuser-Busch or one of those big manufacturers, has a different external impact than a production as limited as this facility may be, and I was just trying to figure out from the perspective of the applicant, or the appellant, what the issue is externally, because what's done inside isn't really going to necessarily affect everybody outside. We look for compatibility standards to assure that it doesn't. And I haven't seen yet where they're going to have external impact Exhibit B Page 70 of 103 that's any greater than uses that I find allowed in C4 such as -- well, we know what ancillary plants are. They're bus stations that the -- that's allowed there. They're like the school bus depots. The auto and home supply stores; auto vehicle and equipment dealers; eating and drinking establishments, which is what this is; food stores; here is one, gasoline service stations with services and repairs are allowed in C4. So we could actually see a Racetrac, potentially, go there as a use that's allowed; hardware stores. Hardware stores have a lot of deliveries coming and going with lumber and other things; hospitals. I saw those elements and I thought, well, these seem to have a greater external impact, and they're allowed in the C4. And I was just trying to understand why this particular use may have such an impact that -- it's more disturbing than that particular -- those uses I just gave as example, because there's 142 uses in C4. MR. BOSI: And I'll go back to the very premise of what my focus has been: Focus and scale. It's scale. If you have a facility that's under 3,000 square feet, there's only a limitation to the amount of product that could be provided. And we talk about distribution, and we talk about distribution in a way that is referenced or alluded to as an activity that's unusual for a drinking establishment or a bar. But to provide for my education, I was a bartender for six years, so I know how -- I know how our product is brought in. It's brought in on dollies, and it's brought in through beer delivery trucks. Now, a beer delivery truck comes and drops its product off A beer delivery truck can stop and pick the keg up. And the same external effect is provided for on the surrounding property owners. So the term "distribution" and the way that it's alluded to in terms of a disrupter is only when the frequency is of a magnitude Exhibit B Page 71 of 103 that creates overburdened pressure upon the external transportation system. And this TIS indicated that that industrial production capacity was going to yield three trips or 6 percent of the peak hour demand upon our transportation system. So scale is very relevant to this application. HEARING EXAMINER STRAIN: Okay. Mike, let me make sure I've got all the questions I need answered before I go further. Yes, I do. Okay. Mr. Lewis, since you did the first presentation, do you have any questions of Mike? MR. LEWIS: Mike, you mentioned that -- you mentioned that the production of beer is an inappropriate -- it's not a permitted use within the C4, is that your testimony, or the Bayshore mixed use as a permitted use, neighborhood commercial? MR. BOSI: In the C4 or the Bayshore mixed-use neighborhood commercial, a malt beverage production 2082 is not a permitted use. MR. LEWIS: Okay. Is the use, the manufacturing -- it's your understanding that they're manufacturing beer, correct? MR. BOSI: Manufacturing, producing, creating, yes. MR. LEWIS: Okay. So they're engaging in manufacturing of beer. And is it your opinion that that is not a -- we're talking now about permitted uses. First of all, let's just make it easy. Is that a conditional use that's appropriate in the C4, underlying C4, or the overlay? MR. BOSI: No. MR. LEWIS: Okay. Is that a permitted use that's available in the C4 or the overlay? MR. BOSI: No. MR. LEWIS: Okay. So it's your opinion that it's an accessory use in the overlay; is that correct? Exhibit B Page 72 of 103 MR. BOSI: Correct. MR. LEWIS: Okay. All right. And that's consistent with your opinion in the zoning verification letter, correct? MR. BOSI: Correct. The zoning verification letter is not -- was not authored by me, nor is that what I'm providing testimony to. I'm providing testimony to the appeal, the staff report within the appeal to the SIP, and the staff report within the OI appeal. MR. LEWIS: But your interpretation does reference the zoning letter, correct? MR. BOSI: It references the zoning letter, correct. MR. LEWIS: Okay. Is it your intention to undermine the zoning letter? MR. BOSI: No. MR. LEWIS: Okay. So in the zoning letter you concluded that the uses in the outlined -- I think there was eight different sub-uses in there. One of them was an accessory microbrewery, right? Those eight uses which they identified, is it your understanding that the SIP that they've submitted, is that still what they're looking for, those types of uses in the SIP? MR. BOSI: As I testified, yes. MR. LEWIS: Okay, great. So in regards to that, in that letter it was said that staff has determined that those uses described are similar to that of a bar or a lounge, and they identified SIC Code 5813, correct? MR. BOSI: Correct. MR. LEWIS: Okay. So it your testimony that what they're doing is really essentially a bar or a lounge and with these accessory uses, which the letter said, staffs of the opinion that these uses could be accommodated on a limited basis as being accessory to a bar? Exhibit B Page 73 of 103 MR. BOSI: As I testified, there was three individual categories that we went through to determine and ensure that there was a subordinate relationship between the production of beer and the primary operation of a bar or tavern. MR. LEWIS: Right. But I'm just trying to confirm, because an accessory is always tied to a principal. So your analysis in 2015 and your analysis in the interpretation was that the -- MS. ASHTON-CICKO: Well, I think he's already testified that he did not do the analysis in 2015, and he's merely referencing the background in the staff report as to how you got to where you are. So if you want to ask him any questions related to how he feels about it today -- MR. LEWIS: Let me make sure we're on the same page, because I think you and I are going different directions. In reference to the eight uses that they identified that you and I have been discussing that they asked for, and you've said, as I understand it, that those uses are the uses that are embodied in the SIP, staff did an analysis that they're describing a bar, and you identified -- the primary use that you identified was SIC Code 5813; is that correct? MR. BOSI: Correct. MR. LEWIS: Okay. And that was an analysis that staff did. Staff also said -- and I'm going to read from the letter. It says, zoning services staff is of the opinion that the remaining limited uses could be -- or listed uses, I'm sorry -- could be accommodated on a limited basis as being accessory to a bar, correct? So that was the calculation or the analysis that staff did; is that correct? MR. BOSI: There was no analysis. Staff said that those uses could be accessory uses to the primary use. Exhibit B Page 74 of 103 MR. LEWIS: Okay. Well, the conclusion, however you want to describe it. But the opinion or determination of staff was that the remaining uses could be accommodated on a limited basis as being accessory to a bar; is that correct? MR. BOSI: Correct. MR. LEWIS: Okay. Are you familiar with staff clarifications? Do you get involved in those? Did you look at any staff clarifications when you wrote any of your -- did any of your analysis? MR. BOSI: Did not consult any, no. MR. LEWIS: You didn't review any? MR. BOSI: No. MR. LEWIS: Okay. So were you aware when you were doing your analysis of staff clarification as it relates to what is an accessory use in Collier County in the application of SC0605? Did you look at that, or anybody you're aware of look at that? MR. BOSI: No. HEARING EXAMINER STRAIN: And, Doug, that's a repetitive statement. He's already commented he didn't use any staff clarifications. So we need to move this along, and redundancy isn't necessary, so... MR. LEWIS: Okay. I apologize. I was just trying to get the record right. I just want to make sure that we're clear. MS. ASHTON-CICKO: Was he provided a copy of the package that shows the staff clarification you're referring to? MR. LEWIS: It's in the binder today, and I've read it. MS. ASHTON-CICKO: Well, I don't know that he looked through the binder. MR. LEWIS: Well, to address that, let me lay the foundation. MS. ASHTON-CICKO: Well, he already answered he Exhibit B Page 75 of 103 didn't use any staff clarifications. MR. LEWIS: Well, you've raised -- with all due respect, you have raised an objection to his testimony -- MS. ASHTON-CICKO: I'm not raising an objection. HEARING EXAMINER STRAIN: No. She's just trying to state a fact. He hasn't had time to review that packet that you supplied to all of us, and neither did I, and so -- MR. LEWIS: Well, I view that as an objection. HEARING EXAMINER STRAIN: -- any questions related to that -- MR. LEWIS: Is that not an objection? MS. ASHTON-CICKO: Well, I'm assisting the Hearing Examiner in the conducting of the meeting, which he's asked me to do. MR. LEWIS: Okay. So going back to my question, have you looked at, today, staff clarification 0605? MR. BOSI: No. MR. LEWIS: Okay. Do you ever look at staff clarifications when you're making zoning determinations? MR. BOSI: Yes. MR. LEWIS: Okay. Why didn't you look at any applicable staff clarifications in relation to this application? What was the reason, if that's your normal course of conduct? MS. ASHTON-CICKO: Well, we already established that we didn't know whether or not the staff clarification was approved by the Board, so it wasn't any official opinion. MR. LEWIS: Well, it's listed on your website, and it's there, and it's numbered. So, you know, it's there, and you've said you reviewed those, is the testimony. So is there a reason why you -- MS. ASHTON-CICKO: He said he did not review it. Exhibit B Page 76 of 103 HEARING EXAMINER STRAIN: Yeah, that's -- MR. LEWIS: No. My question is, is there a reason why you didn't review it here, given your practice of looking at those? MR. BOSI: Relevancy. MR. LEWIS: Okay. Thank you. Did you look at the TIS in reviewing this, the TIS, the Traffic Impact Study? MR. BOSI: The TIS was attached as one of the staff report or staff report exhibits, so yes, I did. MR. LEWIS: Okay. And did the TIS take into account the scale, the scope, the capacity, and the intensity of the beer that's being produced on the property or manufactured? MR. BOSI: Yes, they had accounted for square footage allocated to the light industrial manufacturing beer. MR. LEWIS: Okay. Were there any other factors other than square footage they looked at? MR. BOSI: That I'm not aware of MR. LEWIS: Okay. Do you know what traffic calculation they tied this to in terms of a use calculation in the TIS? MR. BOSI: Land-use Code 110, light industrial. MR. LEWIS: Okay. Thank you. Do you recall in the Site Improvement Plan -- did you review that? Are you aware of the -- MR. BOSI: I did not review the Site Development Plan. MR. LEWIS: You did not. Okay. MS. ASHTON-CICKO: You might want to let them know that that's a separate department that's not under you, if you want to explain that. MR. LEWIS: Were you only providing testimony today as it relates to the official interpretation, or were you providing testimony as it relates to the Site Development Plan? Exhibit B Page 77 of 103 MR. BOSI: I'm providing testimony as it relates to the Site Improvement Plan approval and the OI. The question was, did I do analysis on the Site Improvement Plan, and I assume you were saying for determination of approval. I did not review that. MR. LEWIS: Did you receive the Site Improvement Plan? MR. BOSI: I reviewed an approved Site Improvement Plan. MR. LEWIS: Okay. So you did review it after it was approved? MR. BOSI: Yes. MR. LEWIS: All right. So in part of that review, did you look at the parking calculations for the Site Improvement Plan? MR. BOSI: As I've indicated and put on the overhead, the Traffic Impact Statement that's been provided for was part of my testimony. HEARING EXAMINER STRAIN: What relevance do the parking calculations have to do with the -- MR. LEWIS: I'm getting to that. HEARING EXAMINER STRAIN: -- appeal that you've -- MR. LEWIS: I'm getting to that. HEARING EXAMINER STRAIN: -- the basis of your -- MR. LEWIS: Well, staff-- in answer to your question. HEARING EXAMINER STRAIN: Well, let's hear -- MR. LEWIS: Let me answer your question, then I'll -- staff has indicated that a factor to look at is the scale, and as part of their staff report, they said that the scale of this is limited to a footprint. So the relevancy is -- and I'm going to get to the question. Are you aware -- or let me -- do you know what the square footage that was attributed to the brewery, the industrial manufacturing of beer, what that square footage was attributed to on the Site Improvement Plan? MR. BOSI: Relating to parking calculations? Exhibit B Page 78 of 103 MR. LEWIS: Yes, sir. MR. BOSI: No. MR. LEWIS: All right. Would you disagree with 3,000 square feet? MS. ASHTON-CICKO: Well, I think he -- when you submitted your appeal, you asked two questions that were zoning related, and that's why it was assigned to Mike to answer the questions, and now you're asking specific questions relating to the Site Improvement Plan approval that was done by another person. MR. LEWIS: So you're not providing any testimony today on the appeal of the Site Improvement Plan? These are separate appeals? MS. ASHTON-CICKO: No. He's reviewing the appeal of the Site Improvement Plan, but you've asked a couple questions related to that appeal. MR. LEWIS: And they're related to the appeal of the Site Improvement Plan, because we were forced to have both items combined today. So I'm trying to figure out who do I ask -- MS. ASHTON-CICKO: But the questions -- you asked two questions: That the industrial manufacturing of the beer and related uses with site work as described in Exhibit A cover letter attached hereto is filed by the property owner with the Site Improvement Plan is not a permitted use of a property and the industrial manufacturing of beer is not a principal, accessory, or conditional use that can occur on the property. And now you're asking other questions related to the review of the Site Improvement Plan, so... MR. LEWIS: So in answer to your question -- I'm not sure -- in answer to your question, we filed two separate appeals. MS. ASHTON-CICKO: Yes. And I'm reading the questions. Exhibit B Page 79 of 103 MR. LEWIS: You are reading from one of the appeals. Our second appeal appealed the approval of the Site Improvement Plan. As I understand it -- MS. ASHTON-CICKO: I'm reviewing from the Site Improvement Plan, and we can put your letter on the overhead if that's of assistance. HEARING EXAMINER STRAIN: Mike is responding to the county's position on both of the appeals. (Multiple speakers speaking.) HEARING EXAMINER STRAIN: There is nobody else you're going to hear from the county today. And wait till I finish before you start talking. There won't be anybody else from the county speaking today except for Mike. MR. LEWIS: Okay. HEARING EXAMINER STRAIN: So that's the extent of where your focus needs to be is on the answers that he can respond to based on the reviews he did to get here today. MR. LEWIS: I think we're asking, again, the relevancy of a line of questioning. The relevancy is tied to our statement that the Site Improvement Plan improperly permits the industrial manufacturing of beer as a, quote-unquote, accessory use to the bar. Part of staffs analysis in refuting that in their staff summary, as I read it -- we're talking now about the Site Improvement Plan -- is a question of scale. And, Mike, in his -- I presume it was -- am I correct you worked on the staff report? You put that together? MR. BOSI: Correct. MR. LEWIS: You touched on the issue of scale. So I think it's very relevant, very germane. When you're -- first of all, I don't think scale, frankly, is the legal test under Florida law, but it's the Exhibit B Page 80 of 103 test that you've put in your report. That being said, I think it's a fair question to ask you, when you assert a number, a percentage attributable to the footprint for the bar versus the manufacturing operation, that number, per the Site Improvement Plan, is 3,000 square feet as it relates to the parking calculation. That's the reason for the question. So does that concern you? MR. BOSI: The Site Improvement Plan indicated 2,500 some-odd square footage. So that's what I based the analysis of subordination. MS. ASHTON-CICKO: If you didn't look at the parking as part of your analysis, you can say that. MR. BOSI: I did not review the parking as part of the analysis. MR. LEWIS: Okay. Okay. Finally, the appeal narrative that was filed -- did you have a chance to review the appeal narrative? MR. BOSI: Yes. MR. LEWIS: Okay. And the appeal narrative -- and if you can look at Page 3 of the appeal narrative -- what was the basis stated in that appeal narrative on Page 3? MS. ASHTON-CICKO: Are we in the SIP? MR. LEWIS: So we're at -- MR. BOSI: I believe it was the OI. MS. ASHTON-CICKO: The OI, okay. MR. LEWIS: Yeah. MR. BOSI: So which paragraph would you like me to read? MR. LEWIS: You can look at Page 3. MR. BOSI: The pages weren't numbered, but I can assume that the third one is 3. MR. LEWIS: There was a narrative. What was the -- what was the basis for the appeal as you saw that as related to the -- as Exhibit B Page 81 of 103 you read this appeal based -- was the basis for the appeal? Was it tied to a Comp Plan objection, or was it tied to a land-use objection? MR. BOSI: The property has a Collier County, Florida, land-use map element designation of urban mixed-use district, urban coastal fringe subdistrict, and it's further located in the Bayshore/Gateway Triangle Redevelopment Overlay. Allowable uses within the urban mixed-use district, urban coastal fringe subdistrict designation of the Future Land Use Map in the Bayshore/Gateway Triangle Redevelopment Overlay do not include industrial manufacturing of beer or any other types of industrial use whatsoever. Further, in the urban designation of the FLUM, industrial uses are only permitted in the urban industrial district and in the urban commercial district, certain quadrants of interchange activity centers. MR. LEWIS: Okay. So in the appeal we squarely addressed the appeal centered on the Comp Plan. In the staff report, did you address the -- did you respond or address this analysis in your staff report as it relates to the incompatibility with the Comp Plan? MR. BOSI: No. MR. LEWIS: Okay. And why did you not address that in your staff report? MR. BOSI: The focus of the staff report was upon the zoning, because the application was submitted regarding the zoning of the property and the approval against the permitted uses within the property. The statement of the inconsistency was not articulated in a way in which I felt was necessary to address. MR. LEWIS: So when the statement was made in the narrative, in fact, the urban designation of the future land use, in Exhibit B Page 82 of 103 that designation, industrial uses are only permitted in the urban industrial district and in the urban commercial district, certain quadrants of the activity centers, you didn't feel that that was important to address? MR. BOSI: I didn't -- I did not verify whether that was a correct statement. MR. LEWIS: Okay. Does it -- do you typically look at, when there's a challenge, as to whether or not there's consistency with the Comp Plan? MR. BOSI: When the question is that -- is there consistency issues with the Comp Plan with the uses that are provided for within an overlay district. MR. LEWIS: Right, but -- MR. BOSI: If you wanted to ask me, was the Bayshore Mixed Use Overlay Zoning District consistent with the Comp Plan in its allocation of industrial uses, I would think that question would be asked of me. MR. LEWIS: Okay. Well, the question is that the -- the appeal was based on the approval of the Site Improvement Plan and the issuance of the official interpretation, and the basis for the appeal was there's an incongruency with the Comp Plan. So my question is -- well, I think we already asked the questions, so that's all I have. Thank you. HEARING EXAMINER STRAIN: Thank you. Mr. Brooker, I know that you have an opportunity to ask Mike questions, but we'll do that as you finish up your presentation, and -- no, not right now. I wanted to make sure there's -- I had one more question of Mike. Mike, the question was asked of you about the accessory use being still industrial and, basically, your response, it's allowed as an accessory use due to the scale, but not necessarily does it mean Exhibit B Page 83 of 103 it's a 2082 application; is that a fair interpretation of where your thoughts are on that? Because isn't the accessory use as -- considered industrial based on the fact that it's scaled to a limitation that it won't exceed basically a commercial operation? MR. BOSI: It's based upon -- 2082 is an establishment primarily engaged in the production of malt beverages, and this is an activity that's subordinate to the principal use of a bar and a tavern. And that's the position the county has established and the county is trying to defend. HEARING EXAMINER STRAIN: Okay. And your position that the accessory use is allowed to function as that industrial component is because the accessory use has very -- several limitations or does have limitations? MR. BOSI: It has several limitations and that manufacturing and industrial activity is a use group that's provided for within the Bayshore Mixed-Use Neighborhood Commercial District. HEARING EXAMINER STRAIN: Okay. Thank you, Mike. I think you may have already addressed this, but I'd just like it again for clarification. Have you testified that the use of an accessory brewery/microbrewery in the BMUD is consistent with the Growth Management Plan? MR. BOSI: Yes. HEARING EXAMINER STRAIN: Okay. Thank you. That's all the questions I have, Mike. Thank you very much for your time. If you'll stick around, of course, until the hearing's over today. With that, we will move into our next presentation. Mr. Brooker. MR. LEWIS: I just need to note for the -- for our due process rights that I do lodge an objection to that opinion as it's Exhibit B Page 84 of 103 beyond the scope of the hearing and the appeal with the questions asked in the official interpretation. HEARING EXAMINER STRAIN: And it's not beyond the scope of a response; thank you. MR. LEWIS: Thank you. HEARING EXAMINER STRAIN: At some point, and I'll leave this up to you, Clay, we need to be taking a lunch break, mostly for those people in here that are hungry. I can either ask that we start that now and come back in one hour, or you get your presentation interrupted after about 15 minutes. What would you prefer? We could even go to -- we could spend the -- depending on the court reporter, maybe we could spend the hour. Okay. Well, then we won't -- well, we'll take the hour before we break for lunch then. So you're good to go. MR. BROOKER: Okay. I think I'm going to be less than 15 minutes. HEARING EXAMINER STRAIN: I figure you would be, but I wanted to make sure I didn't -- I didn't perceive -- I didn't make some presumption that may not be right. MR. BROOKER: I appreciate it. For the record, Mr. Strain, my name is Clay Brooker. I am with the law firm of Cheffy Passidomo. I'm a land-use attorney there; 821 Fifth Avenue South. I represent ANK Crafts, LLC, which is the owner of the property that's being challenged, for lack of a better description, today. As the property owner, we are directly and immediately affected by the outcome of this proceeding and, under Florida law, that confers party status upon us, so I do appreciate the acknowledgment that we are a party to this proceeding and appreciate the opportunity to be heard. I would also like to incorporate all of Mr. Bosi's comments Exhibit B Page 85 of 103 into my presentation. We agree with him wholeheartedly. With the exception that I'd like to clarify: We are not going to be producing guided missiles or space vehicles on the property. A couple housekeeping matters. This hearing has turned a lot more legal than I'm used to with respect to these quasi-judicial hearings. HEARING EXAMINER STRAIN: Mine, too. So I have to agree with you. MR. BROOKER: I would like just a standing objection to everything that has been presented at this last moment without having advance notice of being able to see it and prepare for it, specifically Tab 22 to the appellant's notebook, I believe, includes the CV of Mr. Stephen Thompson, an attorney, which, correct me if I'm wrong, Mr. Lewis, but was proffered as an expert. I know Mr. Thompson very well as an attorney, but I believe the proffer was that he is an expert on Florida law, and I believe Florida law does not permit expert testimony on what Florida law says. So I object specifically to a proffer of Mr. Thompson as an expert on Florida law. There was also some discussion with respect to Tab 10 of the notebook. That was the cover letter, if you recall, to the SIP submittal in which there was a characterization of the -- as the use being industrial manufacturing of beer. Mr. Lewis neglected to inform you that that cover letter was corrected, revised subsequently. That was a scrivener's error, and I'd like to present the corrected letter that was, in fact, submitted to the county as part of the record. HEARING EXAMINER STRAIN: That's fine. If you've got additional copies, then you could put one on the overhead if you want to show it to everybody involved. MR. BROOKER: I'm not so sure I really need to show it, Exhibit B Page 86 of 103 Mr. Strain. There in the second paragraph of the letter it refers to a lounge with microbrewery instead of a characterization as industrial manufacturing of beer. HEARING EXAMINER STRAIN: Thank you. We're fine, John. Thanks. MR. BROOKER: So I'm going to try to be brief, and I apologize in advance if there's some duplication. We've been talking about SIC codes, and you're going to hear them again from me and, again, apologize. But I will no doubt be more brief than either of the former two presentations. The fundamental issue here today is whether a microbrewery -- this is a microbrewery -- is an allowed use on the subject property, and virtually every relevant claim and argument we've heard is based upon and depends upon the claim that the microbrewery proposed is classified under SIC Code 2082. That code, SIC Code 2082, reads as follows: Establishments primarily engaged in manufacturing malt beverages. This SIC applies to massive breweries, Anheuser-Busch, that produce millions of kegs of beer a year. Painfully, obviously, that is not what's being proposed today. We are a one-acre parcel. We have approximately a 6,000-square-foot structure. It is physically impossible to produce millions of kegs per year on this property. So from that basis alone, I believe there's doubt whether this property itself could ever be considered to properly be classified under SIC Code 2082. So if SIC Code 2082 is not the appropriate classification, then where do we fall? Well, you have SIC Code 5813. 5813 is entitled drinking, paren, alcoholic beverages, and it states, quote, establishments primarily engaged in the retail sale of alcoholic drinks such as beer and so forth. Again, the word "primarily" Exhibit B Page 87 of 103 expressly stated in both of those SIC codes. And some of the examples under SIC Code 5813 are as follows, and this is straight from the SIC code itself: Beer gardens, beer parlors, beer taverns. I suggest to you that what's being proposed is precisely that. Now, let's look at the express provisions of the Bayshore Mixed Use Overlay Neighborhood Commercial Zoning District. And, for record purposes, that's Section 2.03.07.I.4. Neighborhood commercial subdistrict states that the purpose/intent of the subdistrict is to encourage a mix of low intensity commercial and residential uses. The subdistrict provides for an increased presence and integration of the cultural arts and related support uses, including galleries, artists, studios, and live/work units. My understanding is that the county always intended that language to -- its vision was that this was supposed to be the artsy, more eclectic corridor where people make things, and this is precisely what's being done here. We're selling beer that we make for on-site consumption, primarily. So if you go further into the overlay zoning district language and you get to the table of uses that we've already seen, Mr. Bosi actually put it up on the screen, there's residential uses, there's lodging uses, there's commercial uses, and those uses include bars, taverns, and nightclubs and several manufacturing uses which, Mr. Strain, you've gone through already this morning. And one example of that is metal products fabrication. That is a use, by a way, permitted in only one traditional zoning district in Collier County: The industrial zoning district. So that demonstrates the wide array of commercial uses that's permitted within the Bayshore Mixed Use Overlay Neighborhood Commercial District. And while a microbrewery, that term, that specific term, is Exhibit B Page 88 of 103 not expressly listed as a permitted use -- and, by the way, the term "microbrewery" does not appear anywhere in our Land Development Code. It does not appear anywhere in the SIC code. So what we're dealing with, to be frankly honest, is a bit of a hybrid. The code does allow other uses, quote, within the same class if approved through the OI process. And that, within the same class, is a quotation from -- and I'm sorry to roll your eyes with this long citation, but for the record 2.03.07.I.4.b.ii.b. Ironically, Mr. Lewis did our work for us. An official interpretation was submitted as to whether this was an allowed use, the official interpretation was rendered, and I believe it is well within your discretion, Mr. Strain, to determine today that the use that's being proposed is within the same class as part of your findings as the other permitted uses expressly listed in the district. So, finally -- I told you this was going to be short. Finally, to conclusively demonstrate that the proposed microbrewery is an establishment primarily engaged in the retail sale of beer, we're willing to offer these stipulations today: At least 51 percent of all revenues of this business will come from sales of beer for on-site consumption. No more than 49 percent of the space or square footage of this establishment will be devoted to the manufacturing side of beer. We will be licensed under Florida's beverage law, specifically Section 561.221(3), as a vendor and manufacturer, and that licensing classification by the state requires us to, A, sell beer for on-site consumption and that our production is limited to less than 10,000 kegs per year. We will easily satisfy both of those conditions. We agree to limit off-site shipments -- remember, we are not a distributor. Distributors must come to us, load up, and ship off Exhibit B Page 89 of 103 site -- to no more than three shipments per week. And, to the extent necessary, we stipulate to the accuracy and the binding nature of the professional opinions regarding traffic impacts contained in the TIS in your packet. So, in conclusion, then I would respectfully request that we exercise common sense, reason, and we stop pretending that something -- that whatever's being proposed isn't. We're not proposing a brewery. We're proposing a microbrewery. And we happen to be caught in the twilight zone because no one really has caught on to microbrewery, that term, and inserted it in our code. Notwithstanding that, I believe this use falls -- and I believe Mr. Bosi's opinions confirm that, fall squarely within the permitted uses and accessory uses that are permitted by the Comprehensive Plan for this location. Therefore, we respectfully request that the appeals be denied and that the OI and the SIP approval be affirmed. HEARING EXAMINER STRAIN: Okay. I have a few questions, Clay. When you said you agree to the 51 percent, you agree to it as stated in the recommendation from staff; is that true? MR. BROOKER: Correct. HEARING EXAMINER STRAIN: Okay. And I understand about your space will not exceed, for production, 49 percent of the 6,000-square-foot facility; is that true? You're not -- I mean, 49 percent of any facility, or the 6,000 square feet that's there today. MR. BROOKER: Whatever the actual number is, because -- HEARING EXAMINER STRAIN: Of the facility that's there today. You're not going to -- here's what I don't want you to suggest, that you're going to do 49 percent, but then you're going to triple the size of the building. Exhibit B Page 90 of 103 MR. BROOKER: If we triple the size of the building, you know we have to come back, and then all of a sudden Mr. Bosi is looking at us in terms of scope and scale again. HEARING EXAMINER STRAIN: Okay. Maximum of three shipments per week. Coming in or going out? I mean, that's not deliveries for bulk material. That's outgoing sales? MR. BROOKER: Correct. HEARING EXAMINER STRAIN: Okay. Then that brings me back to 561.221. Let me read the section to you. You tell me where I'm misreading it. Under 3A of that section, not withstanding other provisions of the beverage law, any vendor licensed in the state may be licensed as a manufacturer of malt beverage upon a finding by the division that: One, the vendor will be engaged in brewing malt beverages at a single location in an amount which will not exceed 10,000 kegs per year. For purposes of this subsection, the term "keg" means 15.5 gallons. But number two is the one that's confusing me. The malt beverages so brewed will be sold to consumers for consumption on the vendor's licensed premises or on contiguous licensed premises owned by the vendor. So you're not going off site. MR. BROOKER: Yes, we are. We're going to go off site. That is a licensing statute. The Florida beverage law licenses breweries according to the size of them. HEARING EXAMINER STRAIN: Right. This is the brew pub section. MR. BROOKER: A manufacturer -- manufacturer that manufactures -- I understand. Let me try to explain. HEARING EXAMINER STRAIN: Okay. MR. BROOKER: So the record is clear, we are, primarily for marketing purposes, going to ship off site. So when you go to the restaurant around town you see a tap that says Ankrolab Exhibit B Page 91 of 103 Brewing Co., and that's advertising. But the primary purpose is for on-site consumption on this property. But going back to the statute, manufacturers -- and Anheuser-Busch cannot be a vendor under Florida's beverage law unless you are minimally producing the amount of beer, which is the 10,000 kegs per year. So while that doesn't -- while that statute doesn't conclusively determine our right about whether we are going to ship off site, that is, in fact, a license that we are pulling and that is appropriate for this facility. HEARING EXAMINER STRAIN: Okay. When you started referencing 561.221, you specifically referenced Section 3. MR. BROOKER: Correct. HEARING EXAMINER STRAIN: And that's the piece that -- 3.a.2 is the piece I was having a problem with versus what I've heard throughout today versus that statement that the consumption will be on the vendor's licensed premises or on contiguous licensed premises owned by the vendor, the vendor being ANK Labs or Ankrolab, or whatever. MR. BROOKER: Ankrolab, yes. HEARING EXAMINER STRAIN: Okay. So then this doesn't restrict them to selling just on the facility in question today in Bayshore, but they could then somehow sell to other facilities even with the statement that it will be on the vendor's licensed premises or contiguous licensed premises owned by the vendor? Because any stipulation would tie to this. MR. BROOKER: Right. And I don't know how the state enforces that, but what I'm telling you is that is the license that we are going to be pulling for the purpose of demonstrating today's purposes of the scope. HEARING EXAMINER STRAIN: Okay. That's what I Exhibit B Page 92 of 103 wanted to clear up. I understand. And then the TIS cap, which you've heard testimony, you're bound by it anyway. So you've agree to adhere to that cap as far as trip counts go? MR. BROOKER: Correct. HEARING EXAMINER STRAIN: Okay. I don't have any questions, Clay, after that. MR. BROOKER: Thank you. HEARING EXAMINER STRAIN: Thank you. MR. BROOKER: And, for the record, I have no questions of the prior -- HEARING EXAMINER STRAIN: I was going to ask you -- or Mike Bosi? MR. BROOKER: Sorry? HEARING EXAMINER STRAIN: You have no questions of either Mike Bosi or Mr. Stuart? MR. BROOKER: No, sir. HEARING EXAMINER STRAIN: And that takes us to the end of the presentations that were scheduled for this matter. THE COURT REPORTER: I don't need lunch. HEARING EXAMINER STRAIN: You don't need lunch? Who here needs lunch? (No response.) HEARING EXAMINER STRAIN: Good, because I don't either and neither does the court reporter, and she's the one that we mostly have to worry about. So without her fingers moving as fast as they do to their utmost capacity, it becomes a problem. And with that, we will move into the discussions or any members of staff that would -- I mean the public that have comments. Earlier I asked for all those wishing to speak today to Exhibit B Page 93 of 103 stand to be sworn in. So the first I'm going to ask is when your name is called, if you haven't been sworn in, acknowledge that so the court reporter can swear you in. Mr. Bosi has the -- yeah, applications for speakers and, Mike, if you'll start reading the first one off, and that particular podium there is where you need to go. MR. BOSI: Sure, Mr. Strain. The first speaker is Michael Sherman, and following Mr. Sherman will be Ian Bartoszek. MR. SHERMAN: Good day. My name is Mike Sherman. I'm a member of the CRA advisory board, but today I'm speaking as a small businessman who is building homes in the Bayshore arts district. I just wanted to say that this is a relatively silly process to watch unfold, because this is exactly the kind of thing that, for the last 17 years, the CRA and the community around it have been trying to achieve, and I just wanted to stand up and say that. I guess I can't imagine what the motivation is behind this situation. Why would this landlord who lives -- who has property across the street be willing to go to this trouble to stop an improvement to his neighborhood which will benefit that building? It's beyond me. So that's all I have to say. HEARING EXAMINER STRAIN: Thank you, sir. Next speaker? MR. BOSI: Ian Bartoszek followed by -- HEARING EXAMINER STRAIN: You'll need to spell your last name, please. MR. BARTOSZEK: Sure. Ian Bartoszek, B-a-r-t-o-s-z-e-k. HEARING EXAMINER STRAIN: Thank you. MR. BARTOSZEK: I've already been sworn in. Exhibit B Page 94 of 103 First, I just would like to say that I trust the interpretation of staff as I've heard it through this process today but, more importantly, I'd like to put a face of one of the hopeful end-users to this fine establishment that I hear -- and we've been waiting for for a long time. I'm a wildlife biologist at a not-for-profit environmental organization here in town. That does have some bearing, because at a microbrew establishment in two days I'm having a fundraiser for my research project. So these establishments are very beneficial to the community. I've benefited the previous year and have had support for my research project, removing large invasive snakes from Collier County. These breweries supported my cause, and I know of other microbreweries in town that have supported other conservation causes in town for other institutions, and I would assume and expect that when this fine establishment comes up and running, that it would do just that, probably in support of other initiatives as well. So I've been patient for this one. We have three fine microbreweries in the county. This Ankrolab would anchor the microbrewery establishment in the southern part of the county. And we've been waiting patiently. And I'm very thirsty. Thank you very much. HEARING EXAMINER STRAIN: Thank you. Next speaker, please. MR. BOSI: The next speaker is Maurice Gutierrez. MR. GUTIERREZ: Good afternoon. My name is Maurice Gutierrez. I am currently the chair of the Bayshore CRA. You know, the CRA is tasked with being innovative, being creative, and undoing what our community has been designated as a CRA. You know, CRA is not a blue ribbon award, so we're Exhibit B Page 95 of 103 constantly being challenged but, at the same time, we are up to the challenge to bring new businesses to the area. For the last two years, the CRA has been in total commitment, all the board members; we've had numerous letters to the commissioner backing this project. And it was very interesting that Mr. Bosi made the point of scale and focus. I'm not a land professional, although I'm a businessman, but I could tell you walking down the street and looking at that building, this is not Inbev. This is not Anheuser-Busch. They're not applying for a five-story building to manufacture mass productions of beer. This is for the neighborhood. It represents the diversity we've been looking for. Unfortunately, situations like this have unintended consequences. Not that we're worried about them shipping beer out of there, but we're worried about what the public sees going on here, what other investors can look forward to when they try to redevelop in our area and the potential two-year battle over verbatim and interpretations of compatibility. It was mentioned walkability is one of our focuses. And, wouldn't you know it, we've got a bike lane right in front of this location. What more needs to be done to understand that a micro -- I think that's a small word -- brewery is a small operation, and a CRA is a micro community. We've been designated, not again because of our attributes, but because of the mistakes that have been made in the past. So when the CRA looks at a potential project and recommends it, it isn't because we've got nothing better to do or we've got a lot of money to spend on attorneys; it's because we think it's a good fit. All the hearings we've had, public at the CRA office monthly, have dealt with this, and we have never heard one negative comment from the owners and the business owners in our Exhibit B Page 96 of 103 district which this will impact directly. I can walk to it. I can ride my bike to it. Does that count in the traffic count? I don't know. I'm not a professional. But I can tell you by looking at this location, it is not going to be a mass production. Now, there were concerns that were presented, and it just makes me think, if a shoelace manufacturer would want to come into our neighborhood, would he be looking at comments saying no because, you know, you can strangle people with shoelaces, so those are weapons of mass destruction? You know, the reality is, common sense has a place. It breeds in CRA districts because we've been ignored where common sense was ignored in the past, and I'm mostly hoping that this focus will change for other developers who will risk their money, who will come here and challenge for two years with a vision without walking away and saying, you know, I think I'll go to another location that's not being redeveloped because it's easier to build in a non-redevelopment area. I congratulate the Ankrolab people for having patience. I don't know how financially well that works out for them, but if you're in the neighborhood, I do believe you will be successful. And for the community and the CRA, we have always backed this, and we have not changed our perspective and will continue to do so, and hopefully this will be a place we can all discuss the past over a cold beer. Thank you. HEARING EXAMINER STRAIN: Thank you. (Applause.) HEARING EXAMINER STRAIN: Ladies and gentlemen, please. I've got to ask that you refrain from response to speakers. It's not the -- it's not the thing we're supposed to be doing. Exhibit B Page 97 of 103 Go ahead, Mike. MR. BOSI: The last submitted public speaker form is for Eileen Arsenault. UNIDENTIFIED SPEAKER: She left. HEARING EXAMINER STRAIN: Are there any public speakers who have not registered and not spoken who would like to speak? Ma'am, if you'd come up and identify yourself. (The speaker was duly sworn and indicated in the affirmative.) MS. SILVA: I do. My name is Mena Silva. I am with Naples Beach and Bay Realty. HEARING EXAMINER STRAIN: Spell your last name. MS. SILVA: Sure. S as in Sam, i-1, V as in Victor, a. HEARING EXAMINER STRAIN: Thank you. MS. SILVA: So as I said, I'm a realtor, Naples Beach and Bay Realty. We are a small neighborhood brokerage in the Bayshore area. I kind of represent what's kind of trending in that area. I'm a younger person. I'm a conscientious consumer, so that means that I work in the neighborhood that I love, I support local businesses, and I spend my money there. And we're kind of seeing a trend with that also in real estate. We're having a lot of younger people. I help out a lot of first-time homebuyers as well as investors. And one of the major selling points that we have that people absolutely love is Amanda Jerome's building, which is the marine, the microbrewery, our hotel that's coming up, the Gardenia, as well as the food truck park. So when people come to me -- and it just happened yesterday. I had a couple from Sarasota. They came, they wanted waterfront, but they said they wanted to stay somewhere close so they can walk to the microbrewery. Exhibit B Page 98 of 103 So this business is something that the neighborhood absolutely needs if we're going to want to invite the type of people that we want in our neighborhood, people that appreciate, support local businesses, local art, and the walking neighborhood community. HEARING EXAMINER STRAIN: Thank you, ma'am. Anybody else? (No response.) HEARING EXAMINER STRAIN: Okay. Thank you. And with that, we'll move on to the balance of our meeting today, which will require -- which will allow for a 10-minute rebuttal by the applicant if he so chooses. Mr. Lewis? MR. LEWIS: Staff want to go? HEARING EXAMINER STRAIN: I'm sorry? MR. LEWIS: Your notice that you circulated on Monday stated that staff would go first with their 10-minute rebuttal. HEARING EXAMINER STRAIN: I'm -- Mike, did you have anything you want to rebut? MR. BOSI: No, Mr. Strain. HEARING EXAMINER STRAIN: Then that goes back to you. I didn't think he would, and -- MR. BROOKER: And I waive rebuttal as well. HEARING EXAMINER STRAIN: Okay. So we're back to you. MR. LEWIS: Great. Thank you. I appreciate it. HEARING EXAMINER STRAIN: Ten minutes for your rebuttal and summation. Thank you. MR. LEWIS: A couple housecleaning items. First, the staff clarification, SC0605 is posted on the county website under staff clarification, and the official interpretation conflicts with both this and case law, as we noted. Exhibit B Page 99 of 103 That has -- there's really been -- the only evidence that's been presented as it relates to the status of law as to what is an accessory use has been provided in our appeal. We provided case law in your binder. I've discussed the case law, the Florida Supreme Court case. I'll be getting into that here just briefly in the rebuttal. We've provided an affidavit from a real estate lawyer who is certified or is opining in the testimony that he's an expert in real estate law, and we're proffering him as such. And, yes, under Florida law you can proffer a real estate law expert to provide testimony, competent, substantial testimony in a quasi-judicial hearing, so that's why it was done. But that is really the only testimony, so I'm going to come back to that in a minute. My original OI request was tied to industrial manufacturing of beer. That's right there in the request. The applicant said that they're not conducting this use and they presumably -- I didn't hear them discuss this on the record, I didn't hear them object, but because of that, I think silence is an objection, but I think they would agree that -- and I think their arguments lended to that because they were talking about scale, and they're saying, well, we're a microbrewery. We're not this. So I think it's clear that they're acknowledging that a industrial manufacturing of beer use on the property is not permitted as a permitted accessory or conditional use right. That was the reason for the OI. I've objected to any opinions or determinations that have been given by the planning -- by the zoning officials or anyone else that relate to something other than what we asked for, and that was industrial manufacturing of beer. So in that regard I think it's very clear and that -- for other reasons that I identified earlier, that there has been no determination under the overlay as to whether or not -- by the Exhibit B Page 100 of 103 zoning official as to whether or not anything other than the listed Table 1 uses for accessory use, conditional use, or permitted uses can occur. There has been no other determination. There's been a determination as it relates to industrial manufacturing, which we're being told today this site is not that. Let me just kind of summarize this principle. Assuming we move forward and let's say you determine that the Comp Plan permits -- and whether you classify what they're doing as commercial or industrial. But if it's your conclusion that the Comp Plan permits whether it's in C4 or in the overlay, what they're deeming a microbrewery as an accessory use -- again, the staff has said it can't be a permitted use, it can't be a conditional use. The only thing we're left with is an accessory use. So assuming that we're saying it can be an accessory use, then I think the -- what you're left with is the very clear legal principle that we've articulated that's really been unrebutted, and it's a very clear principle under Florida law, and that is essentially that in order to be -- and it's consistent with the opinion that staff has rendered. If you're going to do that, it's got to be incident to the permitted principal use. I think we've heard testimony the permitted principal use here is a bar, a bar that is primarily for retail consumption of alcohol on premise. So I want to just -- as I close, I wanted to read you a couple of legal principles that really have been unchallenged today, and that is, really, what is the extent of an accessory use? And I think that, you know, if the residents say, well, yeah, we want to have a beer garden, fine, have a beer garden if you determine -- and have a microbrewery if that's what you determine, if it's compatible with Comp Plan. But that does not allow you to convert an accessory use under Florida law, which is subordinate and incident to the primary use. Exhibit B Page 101 of 103 In other words, you can't engage in -- and they've testified. I mean, we heard their very clear admission that they're going to apply for a license that allows them to distribute off site and that they're going to be distributing and wholesaling this stuff all over the county. Now, you've tried to ameliorate that and you've said, well, there's a 51/49. That's not the law. The Florida Supreme Court, which I've cited, has said very clearly that when you do that, you transform accessories into principals, and that's the International Company versus City of Miami Beach case I've cited. That's a problem. And I think your staff understood that when, you know, residents were trying to bring these 500-gallon tanks in and say, well, you know, it's an accessory. It's incidental to the residential uses. No, it's not. Five hundred gallons -- you need 250 gallons. So when you get to a 500-gallon limit -- so when you're brewing, you know, 10,000 or 5,000, or whatever that number is, kegs a year, that's clearly -- and they've admitted it's not going to be used on premise. So there's other cases, the Miami Beach Uchitel case, which is in there, and I think that the Basset analysis, which the Third District adopted, said, essentially, that many ordinances that elaborate statements regarding accessory buildings and uses, they can usually be reduced to a prohibition of business. And it's clear that they're engaging in other business enterprises. And that's the problem. I think it's been undenied, your planning director said, well, we're not saying that -- in our interpretation or the appeal in any sense we're saying that under the overlay or the C4 that you can be a permitted use. We're not saying it can be a conditional use. We're saying it's an accessory use. Well, the law then says, okay, Exhibit B Page 102 of 103 well, if it's going to be accessory, it needs to be subordinate and incident to the principal use. And I think that's the issue here. We've really got the tail wagging the dog. We've got the brewery -- and, by the way, you know, I know he mentioned they changed the letter in April, but the appeals were already filed, so it was kind of self-serving. They didn't change the plan. But either way, you really have the brewery kind of wagging, you know, the tail, and I think that's the problem is that, you know, we have codes; we have provisions. They mean something. And there are significant dominoes that will happen well beyond that, I can just tell you now. I mean, if this precedent's set, I will tell you it's going to create a caveat business for a lot of local land-use lawyers who are going to say, Collier County has blown wide open the accessory use. What is an accessory use? And that's what this does. And I understand. I'm sympathetic. But they were clearly aware of that back in 2015. If they had competent counsel, they would have been advised in 2015 it's only an incident or subordinate to the on-site consumption of alcohol. So with that, I would like to end my presentation and let the record speak for itself. Thank you. HEARING EXAMINER STRAIN: Thank you. That does take us to the end of today's hearing. I do want to thank everybody that participated. You've given me a lot to consider and think about, and I appreciate that. There is no other business on today's agenda and -- are there any further public comments? (No response.) HEARING EXAMINER STRAIN: Hearing none, this meeting's adjourned. Thank you. ******* Exhibit B Page 103 of 103 There being no further business for the good of the County, the meeting was adjourned by order of the Hearing Examiner at 12:23 p.m. COLLIER COUNTY HEARING EXAMINER MARK STRAIN, HEARING EXAMINER ATTEST DWIGHT E. BROCK, CLERK These minutes approved by the Hearing Examiner on , as presented or as corrected . TRANSCRIPT PREPARED ON BEHALF OF U.S. LEGAL SUPPORT, INC., BY TERRI LEWIS, COURT REPORTER AND NOTARY PUBLIC. Exhibit C - Page 1 of 22 2.03.03-Commercial Zoning Districts A. Commercial Professional and General Office District(C-1).The purpose and intent of the commercial professional and general office district C-1 is to allow a concentration of office type buildings and land uses that are most compatible with,and located near,residential areas.Most C-1 commercial,professional,and general office districts are contiguous to,or when within a PUD,will be placed in close proximity to residential areas, and,therefore,serve as a transitional zoning district between residential areas and higher intensity commercial zoning districts.The types of office uses permitted are those that do not have high traffic volumes throughout the day,which extend into the evening hours.They will have morning and evening short-term peak conditions.The market support for these office uses should be those with a localized basis of market support as opposed to office functions requiring inter-jurisdictional and regional market support.Because office functions have significant employment characteristics,which are compounded when aggregations occur,certain personal service uses shall be permitted,to provide a convenience to office-based employment.Such convenience commercial uses shall be made an integral part of an office building as opposed to the singular use of a building.Housing may also be a component of this district as provided for through conditional use approval. 1. The following uses,as identified with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for within this section are permissible by right,or as accessory or conditional uses within the C-1 commercial professional and general office district. a. Permitted uses. 1. Accounting(8721). 2. Adjustment and collection services(7322). 3. Advertising agencies(7311). 4. Architectural services(8712). 5. Auditing(8721). 6. Automobile parking lots(7521)only. 7. Barber shops(7241,except for barber schools). 8. Beauty shops(7231,except for beauty schools). 9. Bookkeeping services(8721). 10. Business consulting services(8748). 11. Business credit institutions(6153-6159). 12. Child day care services(8351). 13. Computer programming,data processing and other services(7371 -7376,7379). 14. Credit reporting services(7323). 15. Debt counseling(7299,no other miscellaneous services) 16. Direct mail advertising services(7331). 17. Educational plants and public schools subject to LDC section 5.05.14. 18. Engineering services(8711). 19. Essential services,subject to section 2.01.03. 20. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5.05.04. 21. Health services,offices and clinics(8011-8049). 22. Insurance carriers,agents and brokers(6311-6399,6411). 23. Landscape architects,consulting and planning(0781). 24. Legal services(8111). 25. Loan brokers(6163). 26. Management services(8741 and 8742). 27. Mortgage bankers and loan correspondents(6162). 28. Personal credit institutions(6141). 29. Photographic studios,portrait(7221). 30. Physical fitness facilities(7991,permitted only when physically integrated and operated in conjunction with another permitted use in this district-no stand-alone facilities shall be permitted). 31. Public relations services(8743). 32. Radio,television and publishers advertising representatives(7313). 33. Real Estate(6531-6552). 34. Secretarial and court reporting services(7338). 35. Security and commodity brokers,dealer,exchanges and services(621 =b28t}-it C - Page 2 of 22 36. Shoe repair shops and shoeshine parlors(7251). 37. Social services,individual and family(8322 activity centers,elderly or handicapped only;day care centers,adult and handicapped only). 38. Surveying services(8713). 39. Tax return preparation services(7291). 40. Travel agencies(4724,no other transportation services). 41. Any other commercial use or professional services which is comparable in nature with the foregoing uses including those that exclusively serve the administrative as opposed to the operational functions of a business and are associated purely with activities conducted in an office. b. Accessory uses. 1. Uses and structures that are accessory and incidental to the uses permitted as of right in the C-1 district. 2. Caretaker's residence,subject to section 5.03.05. c. Conditional uses.The following uses are permissible asconditional usesin the(C-1)commercial professional and general office district,subject to the standards and procedures established in section 10.08.00. 1. Ancillary plants. 2. Automobile parking,automobile parking garages and parking structures(7521 —shall not be construed to permit the activity of"tow-in parking lots"). 3. Banks,credit unions and trusts(6011-6099). 4. Churches. 5. Civic,social and fraternal associations(8641). 6. Eating places primarily intended to serve employees and customers of the permitted use(5812,excluding Automats(eating places);caterers;commissary restaurants;contract feeding;dinner theaters;drive-in restaurants;industrial feeding; restaurants;carry-out;theaters;dinner).The request may be permitted subject to the following criteria: a. The use is physically integrated and operated in conjunction with another permitted use in the C-1 district(no stand- alone facilities shall be permitted). b. There is no exterior signage. c. There is no direct exterior access. d. Parking for the permitted use is consistent with LDC section 4.05.04. e. In addition to the Planning Commission's Findings,its recommendation shall include,but not be limited to,the following considerations for the conditional use request: i. Seating capacity. ii. Gross floor area of the request in relation to the principal structure. 7. Educational services(8211-8222). 8. Funeral services(7261,except crematories). 9. Home health care services(8082). 10. Homeless shelters. 11. Libraries(8231,except regional libraries). 12. Mixed residential and commercial uses subject to design criteria contained in section 4.02.38 except where superseded by the following criteria: i. A site development plan is approved pursuant to section 10.02.03 that is designed to protect the character of the residential uses and of the neighboring lands; ii. The commercial uses in the development may be limited in hours of operation,size of delivery trucks,and type of equipment; iii. The residential uses are designed so that they are compatible with the commercial uses; iv. Residential dwellings units are located above principal uses; v. Residential and commercial uses do not occupy the same floor of a building; vi. The number of residential dwellings units shall be controlled by the dimensional standards of the underlying district, together with the specific requirement that in no instance shall the residential uses exceed fifty(50%)percent of the gross floor area of the building; vii. Building height may not exceed two(2)stories; viii. Each residential dwelling unit shall contain the following minimum floor areas:Efficiency and one-bedroom,450 E square feet;two-bedroom,650 square feet;three-bedroom,90 square feet C Page 3 of 22 ix. A minimum of 30 percent of the mixed use development shall be maintained as open space.The following may be used to satisfy the open space requirements;areas used to satisfy water management requirements,landscaped areas, recreation areas,or setback areas not covered with impervious surface or used for parking(parking lot islands may not be used unless existing native vegetation is maintained); x. The mixed commercial/residential structure shall be designed to enhance compatibility of the commercial and residential uses through such measures as,but not limited to,minimizing noise associated with commercial uses; directing commercial lighting away from residential units;and separating pedestrian and vehicular access ways and parking areas from residential units,to the greatest extent possible. 13. Religious organizations(8661). 14. Soup kitchens. 15. Veterinary services(0742,excluding outdoor kenneling). 16. Any other commercial or professional use which is comparable in nature with the foregoing list of permitted uses and consistent with the purpose and intent statement of the district as determined by the board of zoning appeals pursuant to section 10.08.00. B. Commercial Convenience District(C-2).The purpose and intent of the commercial convenience district(C-2)is to provide lands where commercial establishments may be located to provide the small-scale shopping and personal needs of the surrounding residential land uses within convenient travel distance except to the extent that office uses carried forward from the C-1 district will expand the traditional neighborhood size.However, the intent of this district is that retail and service uses be of a nature that can be economically supported by the immediate residential environs. Therefore,the uses should allow for goods and services that households require on a daily basis,as opposed to those goods and services that households seek for the most favorable economic price and,therefore,require much larger trade areas.It is intended that the C-2 district implements the Collier County GMP within those areas designated agricultural/rural;estates neighborhood center district of the Golden Gate Master Plan;the neighborhood center district of the Immokalee Master Plan;and the urban mixed use district of the future land use element permitted in accordance with the locational criteria for commercial and the goals,objectives,and policies as identified in the future land use element of the Collier County GMP.The maximum density permissible in the C-2 district and the urban mixed use land use designation shall be guided,in part,by the density rating system contained in the future land use element of the Collier County GMP.The maximum density permissible or permitted in a district shall not exceed the density permissible under the density rating system. 1. The following uses,as identified with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for within this section are permissible by right,or as accessory or conditional uses within the C-2 commercial convenience district. a. Permitted uses. 1. Accounting(8721). 2. Adjustment and collection services(7322). 3. Advertising agencies(7311). 4. Apparel and accessory stores(5611-5699)with 1,800 square feet or less of gross floor area in the principal structure. 5. Architectural services(8712). 6. Auditing(8721). Z Automobile Parking,automobile parking garages and parking structures(7521 -shall not be construed to permit the activity of"tow-in parking lots"). 8. Banks,credit unions and trusts(6011-6099). 9. Barber shops(7241,except for barber schools). 10. Beauty shops(7231,except for beauty schools). 11. Bookkeeping services(8721). 12. Business consulting services(8748). 13. Business credit institutions(6153-6159). 14. Child day care services(8351). 15. Churches. 16. Civic,social and fraternal associations(8641). 17. Commercial art and graphic design(7336). 18. Commercial photography(7335). 19. Computer and computer software stores(5734)with 1,800 square feet or less of gross floor area in the principal structure. 20. Computer programming,data processing and other services(7371-7379). 21. Credit reporting services(7323). 22. Debt counseling(7299,no other miscellaneous services) Exhibit C - Page 4 of 22 23. Direct mail advertising services(7331). 24. Eating places(5812,except contract feeding,dinner theaters,institutional food service,and industrial feeding)with 2,800 square feet or less of gross floor area in the principal structure). 25. Educational plants and public schools subject to LDC section 5.05.14. 26. Engineering services(8711). 27. Essential services,subject to section 2.01.03. 28. Food stores(groups 5411 -except supermarkets,5421-5499)with 2,800 square feet or less of gross floor area in the principal structure. 29. Funeral services(7261,except crematories). 30. Garment pressing,and agents for laundries and drycleaners(7212). 31. Gasoline service stations(5541,subject to section 5.05.05). 32. General merchandise stores(5331-5399)with 1,800 square feet or less of gross floor area in the principal structure. 33. Glass stores(5231)with 1,800 square feet or less of gross floor area in the principal structure. 34. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5,05.04. 35. Hardware stores(5251)with 1,800 square feet or less of gross floor area in the principal structure. 36. Health services,offices and clinics(8011-8049). 37. Home furniture and furnishings stores(5713-5719)with 1,800 square feet or less of gross floor area in the principal structure. 38. Home health care services(8082). 39. Insurance carriers,agents and brokers(6311-6399,6411). 40. Landscape architects,consulting and planning(0781). 41. Laundries and drycleaning,coin operated-self service(7215). 42. Legal services(8111). 43. Libraries(8231,except regional libraries). 44. Loan brokers(6163). 45. Management services(8741 and 8742). 46. Mortgage bankers and loan correspondents(6162). 47. Musical instrument stores(5736)with 1,800 square feet or less of gross floor area in the principal structure. 48. Paint stores(5231)with 1,800 square feet or less of gross floor area in the principal structure. 49. Personal credit institutions(6141). 50. Photocopying and duplicating services(7334). 51. Photofinishing laboratories(7384). 52. Photographic studios,portrait(7221). 53. Physical fitness facilities(7991,permitted only when physically integrated and operated in conjunction with another permitted use in this district-no stand-alone facilities shall be permitted). 54. Public relations services(8743). 55. Radio,television and consumer electronics stores(5731)with 1,800 square feet or less of gross floor area in the principal structure. 56. Radio,television and publishers advertising representatives(7313). 57. Real Estate(6531-6552). 58. Record and prerecorded tape stores(5735)with 1,800 square feet or less of gross floor area in the principal structure. 59. Religious organizations(8661). 60. Repair services-miscellaneous(7629-7631,except aircraft,business and office machines,large appliances,and white goods such as refrigerators and washing machines). 61. Retail services-miscellaneous(5912,5942-5961)with 1,800 square feet or less of gross floor area in the principal structure • 62. Secretarial and court reporting services(7338). 63. Security and commodity brokers,dealer,exchanges and services(6211-6289). 64. Shoe repair shops and shoeshine parlors(7251). 65. Social services,individual and family(8322 activity centers,elderly or handicapped only;day care centers,adult and Exhibit C - Page 5 of 22 handicapped only). 66. Surveying services(8713). 67. Tax return preparation services(7291). 68. Travel agencies(4724,no other transportation services). 69. United State Postal Service(4311,except major distribution center). 70. Veterinary services(0742,excluding outdoor kenneling). 71. Videotape rental(7841)with 1,800 square feet or less of gross floor area in the principal structure. 72. Wallpaper stores(5231)with 1,800 square feet or less of gross floor area in the principal structure. 73. Any other commercial use or professional services which is comparable in nature with the foregoing uses including those that exclusively serve the administrative as opposed to the operational functions of a business and are associated purely with activities conducted in an office. 74. Any other commercial or professional use which is comparable in nature with the(C-1)list of permitted uses and consistent with the purpose and intent statement of the district as determined by the board of zoning appeals pursuant to section 10.08.00. 75. An existing lawful structure over 1,800 sq.ft.as of July 14,2014 may be occupied by any C-2 permitted use with a 1,800 sq.ft. or greater limitation. b. Accessory Uses. 1. Uses and structures that are accessory and incidental to the customary uses permitted as of right in the C-2 district. 2. Where play areas are constructed as an accessory use to a permitted use,the following conditions shall apply: i. A minimum five and one-half(5Y2)foot high reinforced fence shall be installed on all sides of the play area which are not open to the principal structure; ii. Ingress to and egress from the play area shall be made only from the principal structure,however an emergency exit from the play area shall be provided which does not empty into the principal structure. iii. The play equipment shall be set back a minimum distance of five(5)feet from the required fence and from the principal structure. 3. Caretaker's residence,subject to section 5.03.05. 4. Outside storage or display of merchandise when specifically permitted for a use,otherwise prohibited,subject to section 4.02.12. c. Conditional uses.The following uses are permissible as conditional uses in the commercial convenience district(C-2),subject to the standards and procedures established in section 10.08.00. 1. Ancillary plants. 2. Educational services(8211,8222). 3. Homeless shelters. 4. Household appliance stores(5722,limited to air-conditioning room units,self-contained-retail,electronic household appliance stores-retail,household appliance stores,electric or gas-retail,sewing machine stores-retail,and vacuum cleaner stores-retail)with 1,800 square feet or less of gross floor area in the principal structure. 5. Marinas(4493 excluding boat yards,storage and incidental repair),subject to LDC section 5.05.02. 6. Membership organizations,miscellaneous(8699,excluding humane societies,animal)limited to 1,800 square feet or less of gross floor area in the principal structure. 7. Mixed residential and commercial uses subject to design criteria contained in LDC section 4.02.38 except where superseded by the following criteria: i. A site development plan is approved pursuant to section 10.02.03 that is designed to protect the character of the residential uses and neighboring lands; ii. The commercial uses in the development may be limited in hours of operation,size of delivery trucks,and type of equipment; iii. The residential uses are designed so that they are compatible with the commercial uses; iv. Residential dwellings units are located above principal uses; v. Residential and commercial uses do not occupy the same floor of a building; vi. The number of residential dwellings units shall be controlled by the dimensional standards of the underlying district, together with the specific requirement that in no instance shall the residential uses exceed fifty(50%)percent of the gross floor area of the building or the density permitted under the growth management plan; vii. Building height may not exceed two(2)stories; t C 22 viii. Each residential dwelling unit shall contain the following minimum floo�a ea:fficieency one bbeedroom,,450 square f three-bedroom,900 square feet; ix. The residential dwellings units shall be restricted to occupancy by the owners or lessees of the commercial units below; x. A minimum of thirty(30)percent of the mixed use development shall be maintained as open space.The following may be used to satisfy the open space requirements;areas used to satisfy water management requirements;landscaped areas,recreation areas,or setback areas not covered with impervious surface or used for parking(parking lot islands may not be used unless existing native vegetation is maintained); xi. The mixed commercial/residential structure shall be designed to enhance compatibility of the commercial and residential uses through such measures as,but not limited to,minimizing noise associated with commercial uses; directing commercial lighting away from residential units;and separating pedestrian and vehicular accessways and parking areas from residential units,to the greatest extent possible. 8. Personal services,miscellaneous(7299-not listed as principle uses and limited to babysitting bureaus;birth certificate agencies;car title and tag services;computer photography or portraits;dating service;diet workshops;dress suit rental;tux rental;genealogical investigation service;hair removal;shopping service for individuals only;wardrobe service,except theatrical;wedding chapels,privately operated)with 1,800 square feet or less of gross floor area in the principal structure. 9. Permitted personal service,video rental or retail uses with more than 1,800 square feet of gross floor area in the principal structure. 10. Permitted food service(eating places or food stores)uses with more than 2,800 square feet of gross floor area in the permitted principal structure. 11. Soup kitchens. 12. Any other convenience commercial use which is comparable in nature with the foregoing(C-2)list of permitted uses and consistent with the purpose and intent statement of the district,as determined by the board of zoning appeals pursuant to section 10.08.00. C. Commercial Intermediate District(C-3).The purpose and intent of the commercial intermediate district(C-3)is to provide for a wider variety of goods and services intended for areas expected to receive a higher degree of automobile traffic.The type and variety of goods and services are those that provide an opportunity for comparison shopping,have a trade area consisting of several neighborhoods,and are preferably located at the intersection of two-arterial level streets.Most activity centers meet this standard.This district is also intended to allow all of the uses permitted in the C-1 and C-2 zoning districts typically aggregated in planned shopping centers.This district is not intended to permit wholesaling type of uses,or land uses that have associated with them the need for outdoor storage of equipment and merchandise.A mixed-use project containing a residential component is permitted in this district subject to the criteria established herein.The C-3 district is permitted in accordance with the locational criteria for commercial and the goals,objectives,and policies as identified in the future land use element of the Collier County GMP.The maximum density permissible in the C-3 district and the urban mixed use land use designation shall be guided,in part,by the density rating system contained in the future land use element of the Collier County GMP.The maximum density permissible or permitted in the C-3 district shall not exceed the density permissible under the density rating system. 1. The following uses,as identified with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for within this section are permissible by right,or as accessory or conditional uses within the commercial intermediate district(C-3). a. Permitted uses. 1. Accounting(8721). 2. Adjustment and collection services(7322). 3. Advertising agencies(7311). 4. Animal specialty services,except veterinary(0752,excluding outside kenneling). 5. Apparel and accessory stores(5611-5699)with 5,000 square feet or less of gross floor area in the principal structure. 6. Architectural services(8712). 7. Auditing(8721). 8. Auto and home supply stores(5531)with 5,000 square feet or less of gross floor area in the principal structure. 9. Automobile Parking,automobile parking garages and parking structures(7521 —shall not be construed to permit the activity of"tow-in parking lots"). 10. Automotive services(7549)except that this shall not be construed to permit the activity of"wrecker service(towing) automobiles,road and towing service." 11. Banks,credit unions and trusts(6011-6099). 12. Barber shops(7241,except for barber schools). 13. Beauty shops(7231,except for beauty schools). 14. Bookkeeping services(8721). Exhibit C - Page 7 of 22 15. Business associations(8611). 16. Business consulting services(8748). 17. Business credit institutions(6153-6159). 18. Business services-miscellaneous(7389,except auctioneering service,automobile recovery,automobile repossession,batik work,bottle exchanges,bronzing,cloth cutting,contractors'disbursement,cosmetic kits,cotton inspection,cotton sampler, directories-telephone,drive-away automobile,exhibits-building,filling pressure containers,field warehousing,fire extinguisher,floats-decoration,folding and refolding,gas systems,bottle labeling,liquidation services,metal slitting and shearing,packaging and labeling,patrol of electric transmission or gas lines,pipeline or powerline inspection,press clipping service,recording studios,repossession service,rug binding,salvaging of damaged merchandise,scrap steel cutting and slitting,shrinking textiles,solvent recovery,sponging textiles,swimming pool cleaning,tape slitting,texture designers,textile folding,tobacco sheeting,window trimming,and yacht brokers). 19. Child day care services(8351). 20. Churches. 21. Civic,social and fraternal associations(8641). 22. Commercial art and graphic design(7336). 23. Commercial photography(7335). 24. Computer and computer software stores(5734)with 5,000 square feet or less of gross floor area in the principal structure. 25. Computer programming,data processing and other services(7371-7379). 26. Credit reporting services(7323). 27. Direct mail advertising services(7331). 28. Drycleaning plants(7216,nonindustrial drycleaning only). 29. Drug stores(5912). 30. Eating places(5812 only)with 6,000 square feet or less in gross floor area in the principal structure.All establishments engaged in the retail sale of alcoholic beverages for on-premise consumption are subject to locational requirements of section 5.05.01. 31. Educational plants and public schools subject to LDC section 5.05.14. 32. Engineering services(8711). 33. Essential services,subject to section 2.01.03. 34. Federal and federally-sponsored credit agencies(6111). 35. Food stores(groups 5411-5499)with 5,000 square feet or less of gross floor area in the principal structure. 36. Funeral services(7261,except crematories). 37. Garment pressing,and agents for laundries and drycleaners(7212). 38. Gasoline service stations(5541,subject to section 5.05,05). 39. General merchandise stores(5331-5399)with 5,000 square feet or less of gross floor area in the principal structure. 40. Glass stores(5231)with 5,000 square feet or less of gross floor area in the principal structure. 41. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5.05.04. 42. Hardware stores(5251)with 1,800 square feet or less of gross floor area in the principal structure. 43. Health services,offices and clinics(8011-8049). 44. Home furniture and furnishings stores(5712-5719)with 5,000 square feet or less of gross floor area in the principal structure. 45. Home health care services(8082). 46. Household appliance stores(5722)with 5,000 square feet or less of gross floor area in the principal structure. 47. Insurance carriers,agents and brokers(6311-6399,6411). 48. Labor unions(8631). 49. Landscape architects,consulting and planning(0781). 50. Laundries and drycleaning,coin operated-self service(7215). 51. Laundries,family and commercial(7211). 52. Legal services(8111). • 53. Libraries(8231). 54. Loan brokers(6163). 55. Management services(8741 and 8742). Exhibit C - Page 8 of 22 56. Marinas(4493),subject to section 5.05.02. 57. Membership organizations,miscellaneous(8699). 58. Mortgage bankers and loan correspondents(6162). 59. Museums and art galleries(8412). 60. Musical instrument stores(5736)with 5,000 square feet or less of gross floor area in the principal structure. 61. Paint stores(5231)with 5,000 square feet or less of gross floor area in the principal structure. 62. Personal credit institutions(6141). 63. Personal services,miscellaneous(7299-babysitting bureaus,clothing rental,costume rental,dating service,debt counseling, depilatory salons,diet workshops,dress suit rental,electrolysis,genealogical investigation service,and hair removal only) with 5,000 square feet or less of gross floor area in the principal structure. 64. Personnel supply services(7361 and 7363). 65. Photocopying and duplicating services(7334). 66. Photofinishing laboratories(7384). 6Z Photographic studios,portrait(7221). 68. Physical fitness facilities(7991;7911,except discotheques). 69. Political organizations(8651). 70. Professional membership organizations(8621). 71. Public administration(groups 9111-9199,9229,9311,9411-9451,9511-9532,9611-9661). 72. Public relations services(8743). 73. Radio,television and consumer electronics stores(5731)with 5,000 square feet or less of gross floor area in the principal structure. 74. Radio,television and publishers advertising representatives(7313). 75. Real Estate(6531-6552). 76. Record and prerecorded tape stores(5735)with 5,000 square feet or less of gross floor area in the principal structure, 77. Religious organizations(8661). 78. Repair services-miscellaneous(7629-7631,7699-bicycle repair,binocular repair,camera repair,key duplicating, lawnmower repair,leather goods repair,locksmith shop,picture framing,and pocketbook repair only). 79. Retail nurseries,lawn and garden supply stores(5261)with 5,000 square feet or less of gross floor area in the principal structure. 80. Retail services-miscellaneous(5921-5963 except pawnshops and building materials,5992-5999 except auction rooms, awning shops,gravestones,hot tubs,monuments,swimming pools,tombstones and whirlpool baths)with 5,000 square feet or less of gross floor area in the principal structure. 81. Secretarial and court reporting services(7338). 82. Security and commodity brokers,dealer,exchanges and services(6211-6289). 83. Shoe repair shops and shoeshine parlors(7251). 84. Social services,individual and family(8322 activity centers,elderly or handicapped only;day care centers,adult and handicapped only). 85. Surveying services(8713). 86. Tax return preparation services(7291). 8Z Travel agencies(4724,no other transportation services). 88. United State Postal Service(4311,except major distribution center). 89. Veterinary services(0742,excluding outdoor kenneling). 90. Videotape rental(7841)with 5,000 square feet or less of gross floor area in the principal structure. 91. Wallpaper stores(5231)with 5,000 square feet or less of gross floor area in the principal structure. 92. Any use which was permissible under the prior General Retail Commercial(GRC)zoning district,as identified by Zoning Ordinance adopted October 8,1974,and which was lawfully existing prior to the adoption of this Code. 93. Any of the foregoing uses that are subject to a gross floor area limitation shall be permitted by right without the maximum floor area limitation if the use is developed as a component of a shopping center. 94. Any other commercial use or professional services which is comparable in nature with the foregoing uses including those that exclusively serve the administrative as opposed to the operational functions of a business and are associated purely with activities conducted in an office. e 2 2 f 95. Any other commercial or professional use which is comparable in nature Exh�t a(C-'f)list of pp ittted uses an consistent witl statement of the district as determined by the board of zoning appeals pursuant to section 10.08.00. 96. An existing lawful structure over 5,000 sq.ft.as of July 14,2014 may be occupied by any C-3 permitted use with a 5,000 sq.ft. or greater limitation. b. Accessory Uses. 1. Uses and structures that are accessory and incidental to the uses permitted as of right in the C-3 district. 2. Caretaker's residence,subject to section 5.03.05. 3. Outside storage or display of merchandise when specifically permitted for a use,otherwise prohibited,subject to section 4.02.12. c. Conditional uses.The following uses are permissible as conditional uses in the commercial intermediate district(C-3),subject to the standards and procedures established in sections 4.02.02 and 10.08.00. 1. Amusements and recreation services(7999-boat rental,miniature golf course,bicycle and moped rental,rental of beach chairs and accessories only). 2. Ancillary plants. 3. Automotive vehicle dealers(5511,limited to automobile agencies(dealers)-retail and only new vehicles).In addition to the Planning Commission's Findings,its recommendation shall include,but not be limited to,the following considerations for the conditional use request: a. Controls on outdoor paging or amplified systems used as part of the daily operations. b. Location of enclosed service areas,with exception for entry/exit doors. c. The number of service bays. d. Operation hours. e. Adequacy of buffer(s). f. Location of gasoline storage and/or fueling tanks. g. Means of delivery of automobiles. 4. Bowling centers(7933). 5. Coin operated amusement devices(7993). 6. Courts(9211). 7. Drinking places(5813)excluding bottle clubs.All establishments engaged in the retail sale of alcoholic beverages for on- premise consumption are subject to the locational requirements of section 5.05.01. 8. Educational services(8221 and 8222). 9. Fire protection(9224). 10. Food stores with greater than 5,000 square feet of gross floor area in the principal structure(groups 5411-5499). 11. Health services(8071,8092,and 8099). 12. Homeless shelters. 13. Hospitals(groups 8062-8069). 14. Legal counsel and prosecution(9222). 15. Medical equipment rental and leasing(7352). 16. Membership sports and recreational clubs indoor only(7997). 17. Mixed residential and commercial uses,subject to design criteria contained in section 4.02.38 except where superseded by the following criteria: i. A site development plan is approved pursuant to section 10.02.03 that is designed to protect the character of the residential uses and neighboring lands; ii. The commercial uses in the development may be limited in hours of operation,size of delivery trucks,and type of equipment; iii. The residential uses are designed so that they are compatible with the commercial uses; iv. Residential dwellings units are located above principal uses; v. Residential and commercial uses do not occupy the same floor of a building; vi. The number of residential dwellings units shall be controlled by the dimensional standards of the C-3 district,together with the specific requirement that in no instance shall the residential uses exceed 50 percent of the gross floor area of the building or the density permitted under the growth management plan; vii. Building height may not exceed two stories; viii. Each residential dwelling unit shall contain the following minimum floor areas:efficiency and one-bedroom,450 square E)ffeet;two-bedroom,650 square feet;three-bedroom,900 squ re eet; C - Page 10 of 22 ix. The residential dwellings units shall be restricted to occupancy by the owners or lessees of the commercial units below; x. A minimum of thirty(30)percent of the mixed use development shall be maintained as open space.The following may be used to satisfy the open space requirements;areas used to satisfy water management requirements;landscaped areas;recreation areas;or setback areas not covered with impervious surface or used for parking(parking lot islands may not be used unless existing native vegetation is maintained); xi. The mixed commercial/residential structure shall be designed to enhance compatibility of the commercial and residential uses through such measures as,but not limited to,minimizing noise associated with commercial uses; directing commercial lighting away from residential units;and separating pedestrian and vehicular accessways and parking areas from residential units,to the greatest extent possible. 18. Motion picture theaters,(7832-except drive-in). 19. Permitted food service(5812,eating places)uses with more than 6,000 square feet of gross floor area in the principal structure. 20. Permitted personal services,video rental or retail uses(excluding drug stores-5912)with more than 5,000 square feet of gross floor area in the principal structure. 21. Permitted use with less than 700 square feet gross floor area in the principal structure. 22. Public order and safety(9229). 23. Social services(8322-other than those permitted,8331-8399) 24. Soup kitchens. 25. Theatrical producers and miscellaneous theatrical services(7922-community theaters only). 26. Vocational schools(8243-8299). 27. Any other intermediate commercial use which is comparable in nature with the foregoing list of permitted uses and consistent with the permitted uses and purpose and intent statement of the district,as determined by the board of zoning appeals pursuant to section 10.08.00. D. General Commercial District(C-4).The general commercial district(C-4)is intended to provide for those types of land uses that attract large segments of the population at the same time by virtue of scale,coupled with the type of activity.The purpose and intent of the C-4 district is to provide the opportunity for the most diverse types of commercial activities delivering goods and services,including entertainment and recreational attractions,at a larger scale than the C-1 through C-3 districts.As such,all of the uses permitted in the C-1 through C-3 districts are also permitted in the C-4 district.The outside storage of merchandise and equipment is prohibited,except to the extent that it is associated with the commercial activity conducted on-site such as,but not limited to,automobile sales,marine vessels,and the renting and leasing of equipment.Activity centers are suitable locations for the uses permitted by the C-4 district because most activity centers are located at the intersection of arterial roads. Therefore the uses in the C-4 district can most be sustained by the transportation network of major roads.The C-4 district is permitted in accordance with the locational criteria for uses and the goals,objectives,and policies as identified in the future land use element of the Collier County GMP.The maximum density permissible or permitted in a district shall not exceed the density permissible under the density rating system. 1. The following uses,as defined with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for within this section are permissible by right,or as accessory or conditional uses within the general commercial district(C-4). a. Permitted uses. 1. Accounting(8721). 2. Adjustment and collection services(7322). 3. Advertising agencies(7311). 4. Advertising-miscellaneous(7319). 5. Agricultural services(0783). 6. Amusement and recreation services,indoor. 7. Amusement and recreation services,outdoor(7999-fishing piers and lakes operation,houseboat rental,pleasure boat rental,operation of party fishing boats,canoe rental only). 8. Ancillary plants. 9. Animal specialty services,except veterinary(0752,excluding outside kenneling). 10. Apparel and accessory stores(5611-5699). 11. Architectural services(8712). 12. Auditing(8721). 13. Auto and home supply stores(5531). 14. Automobile Parking,automobile parking garages and parking structures(7521 -shall not be construed to permit the activity of"tow-in parking lots"). 22 15. Automotive services(7549)except that this shall not be construed o automobile 16. Automotive vehicle and equipment dealers(5511 and 5599,new vehicles only). 17. Banks,credit Unions and trusts(6011-6099). 18. Barber shops(7241,except for barber schools). 19. Beauty shops(7231,except for beauty schools). 20. Bookkeeping services(8721). 21. Bowling centers,indoor(7933). 22. Building cleaning and maintenance services(7349). 23. Business associations(8611). 24. Business consulting services(8748). 25. Business credit institutions(6153-6159). 26. Business services-miscellaneous(7381,7389-except auctioneering service,automobile recovery,automobile repossession, batik work,bottle exchanges,bronzing,cloth cutting,contractors'disbursement,cosmetic kits,cotton inspection,cotton sampler,directories-telephone,drive-away automobile,exhibits-building,filling pressure containers,field warehousing,fire extinguisher,floats-decoration,folding and refolding,gas systems,bottle labeling,liquidation services,metal slitting and shearing,packaging and labeling,patrol of electric transmission or gas lines,pipeline or powerline inspection,press clipping service,recording studios,repossession service,rug binding,salvaging of damaged merchandise,scrap steel cutting and slitting,shrinking textiles,solvent recovery,sponging textiles,swimming pool cleaning,tape slitting,texture designers,textile folding,tobacco sheeting,and window trimming service). 27. Cable and other pay television services(4841)including communications towers up to specified height,subject to section- 5.05.09. 28. Carpet and upholstery cleaning(7217). 29. Carwashes(7542)provided that carwashes abutting residential zoning districts shall be subject to section 5.05.11 of this Code. 30. Child day care services(8351). 31. Churches. 32. Civic,social and fraternal associations(8641). 33. Coin-operated laundries and dry cleaning(7215). 34. Coin operated amusement devices,indoor(7993). 35. Commercial art and graphic design(7336). 36. Commercial photography(7335). 37. Commercial printing(2752,excluding newspapers). 38. Computer programming,data processing and other services(7371-7379). 39. Computer and computer software stores(5734). 40. Credit reporting services(7323). 41. Dance studios,schools and halls,indoor(7911). 42. Detective,guard and armored car service(7381,except armored car and dog rental). 43. Department stores(5311). 44. Direct mail advertising services(7331). 45. Disinfecting and pest control services(7342). 46. Drycleaning plants(7216,nonindustrial drycleaning only). 47. Drug stores(5912). 48. Eating and drinking establishments(5812 and 5813)excluding bottle clubs.All establishments engaged in the retail sale of alcoholic beverages for on-premise consumption are subject to the locational requirements of section 5.05.01. 49. Educational plants and public schools subject to LDC section 5.05.14. 50. Educational services(8221 and 8222). 51. Electrical and electronic repair shops(7622-7629). 52. Engineering services(8711). 53. Equipment rental and leasing(7359-except airplane,industrial truck,portable toilet and oil field equipment renting and leasing). 54. Essential services,subject to section 2.01.03. 55. Facilities support management services(8744). Exhibit C - Page 12 of 22 56. Federal and federally-sponsored credit agencies(6111). 57. Food stores(groups 5411-5499). 58. Funeral services(7261,except crematories). 59. Garment pressing,and agents for laundries and drycleaners(7212). 60. Gasoline service stations(5541),with services and repairs as described in section 5.05.05. 61. General merchandise stores(5331-5399). 62. Glass stores(5231). 63. Golf courses,public(7992). 64. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5.05.04. 65. Hardware stores(5251). 66. Health services,miscellaneous(8092-8099). 67. Health services,offices and clinics(8011-8049). 68. Home furniture and furnishings stores(5712-5719). 69. Home health care services(8082). 70. Hospitals(8062-8069). 71. Hotels and motels(7011,7021 and 7041)when located within an activity center. 72. Household appliance stores(5722). 73. Insurance carriers,agents and brokers(6311-6399,6411). 74. Labor unions(8631). 75. Landscape architects,consulting and planning(0781). 76. Laundries and drycleaning,coin operated-self service(7215). 77. Laundries,family and commercial(7211). 78. Laundry and garment services,miscellaneous(7219). 79. Legal services(8111). 80. Libraries(8231). 81. Loan brokers(6163). 82. Management services(8741,8742). 83. Marinas(4493 and 4499-except canal operation,cargo salvaging,ship dismantling,lighterage,marine salvaging,marine wrecking,and steamship leasing),subject to section 5.05.OZ. 84. Medical and dental laboratories(8071 and 8072). 85. Medical equipment rental and leasing(7352). 86. Membership organizations,miscellaneous(8699). 87. Membership sports and recreation clubs,indoor(7997). 88. Mortgage bankers and loan correspondents(6162). 89. Motion picture theaters(7832). 90. Motorcycle dealers(5571). 91. Museums and art galleries(8412). 92. Musical instrument stores(5736). 93. News syndicates(7383). 94. Nursing and professional care facilities(8051-8059). 95. Outdoor advertising services(7312). 96. Paint stores(5231). 9Z Passenger car leasing(7515). 98. Passenger car rental(7514). 99. Personal credit institutions(6141). 100 Personal services,miscellaneous(7299). • 101 Personnel supply services(7361 and 7363). • 102 Photocopying and duplicating services(7334). • Photofinishing laboratories(7384). E 103 104 Photographic studios,portrait(72 xhibit C - Page 13 of 22 • • 105 Physical fitness facilities(7991). • 106 Political organizations . (8651). 107 Professional membership organizations(8621). • 108 Professional sports clubs and promoters,indoor(7941). • 109 Public administration(groups 9111-9199,9229,9311, . 9411-9451,9511-9532,9611-9661). 110 Public or private parks and playgrounds. • 111 Public relations services(8743). • 112 Radio,television and consumer electronics stores(5731). • 113 Radio,television and . publishers advertising representatives(7313). 114 Radio and television broadcasting stations(4832 and 4833). • 115 Real Estate(6512,6531-6552). • 116 Record and prerecorded tape stores(5735). • 117 Religious organizations (8661). 118 Repair services-miscellaneous(7699-except agricultural equipment repair,awning repair,beer pump coil cleaning and . repair,blacksmith shops,catch basin,septic tank and cesspool cleaning,industrial truck repair,machinery cleaning,repair of service station equipment,boiler cleaning,tinsmithing,tractor repair). 119 Research,development and testing services(8731-8734). • 120 Retail-miscellaneous(5921-5963,5992-5999). • 121 Retail nurseries,lawn and garden supply stores(5261). • 122 Reupholstery and . furniture repair(7641). 123 Secretarial and court reporting services(7338). • 124 Security and commodity brokers,dealer,exchanges and services(6211-6289). • 125 Security systems services(7382). • 126 Shoe repair shops and . shoeshine parlors(7251). 127 Social services,individual and family(8322-8399,except for homeless shelters and soup kitchens). • 128 Surveying services(8713). • 129 Tax return preparation services(7291). • 130 Telegraph and other . message communications (4822)including communications towers up to specified height, subject to section 5.05.09. 131 Telephone communications(4812 and 4813)including communications towers up to specified height,subject to section 5.05.09. 132 Theatrical producers and miscellaneous theatrical services,indoor(7922-7929,including bands,orchestras and entertainers; . except motion picture). 133 Travel agencies(4724,no other transportation services). • 134 United State Postal Service(4311,except major distribution center). • 135 Veterinary services(0741 and 0742,excluding outside . kenneling). 136 Videotape rental(7841). • 137 Vocational schools(8243-8299). • Wallpaper stores(5231). 138 139 Watch,clock and jewelry repair(7o.51).hibit C ' Page 14 of 22 • • 140 Any use which was permissible under the prior General . Retail Commercial(GRC)zoning district,as identified by Zoning Ordinance adopted October 8,1974,and which was lawfully existing prior to the adoption of this Code. 141 Any other commercial use or professional services which is comparable in nature with the foregoing uses including those . that exclusively serve the administrative as opposed to the operational functions of a business and are purely associated with activities conducted in an office. 142 Any other commercial or professional use which is comparable in nature with the(C-1)list of permitted uses and consistent . with the purpose and intent statement of the district as determined by the board of zoning appeals pursuant to section 10.08.00. b. Accessory Uses. 1. Uses and structures that are accessory and incidental to the uses permitted as of right in the C-4 district. 2. Caretaker's residence,subject to section 5.03.05. 3. Outside storage or display of merchandise when specifically permitted for a use,otherwise prohibited,subject to section 4.02.12. c. Conditional uses.The following uses are permitted as conditional uses in the general commercial district(C-4),subject to the standards and procedures established in section 10.08.00. 1. Animal specialty services,except veterinary(0752,with outside kenneling). 2. Amusement and recreation services,outdoor(7948,7992,7996,7999). 3. Auctioneering services,auction rooms(7389,5999). 4. Automotive dealers and gasoline service stations(5511,5521). 5. Automotive rental and leasing,outdoor display permitted(7513,7519). 6. Boat dealers(5551). 7. Bottle clubs.(All establishments engaged in the retail sale of alcoholic beverages for on-premise consumption are subject to the locational requirements of section 5.05.01.). 8. Communication towers above specified height,subject to section 5.05.09. 9. Dealers not elsewhere classified(5599 outdoor display permitted,excluding Aircraft dealers-retail). 10. Fire protection(9224). 11. Fishing,hunting and trapping(0912-0919). 12. Fuel dealers(5983-5989). 13. Homeless shelters. 14. Hotels and motels(7011,7021,7041 when located outside an activity center). 15. Kiosks. 16. Legal counsel and prosecution(9222). 17. Local and suburban transit(groups 4111-4121,bus stop and van pool stop only). 18. Motion picture theaters,drive-in(7833). 19. Permitted use with less than 700 square feet of gross floor area in the principal structure. 20. Police Protection(9221). 21. Public order and safety(9229). 22. Recreational vehicle dealers(5561). 23. Soup kitchens. 24. Motor freight transportation and warehousing(4225,air conditioned and mini-and self storage warehousing only). 25. Veterinary services(0741 and 0742,with outside kenneling). 26. Any other general commercial use which is comparable in nature with the foregoing list of permitted uses and consistent with the permitted uses and purpose and intent statement of the district,as determined by the board of zoning appeals pursuant to section 10.08.00. E. Heavy Commercial District(C-5).In addition to the uses provided in the C-4 zoning district,the heavy commercial district(C-5)allows a range of more intensive commercial uses and services which are generally those uses that tend to utilize outdoor space in the conduct of the business.The C-5 district permits heavy commercial services such as full-service automotive repair,and establishments primarily engaged in construction and specialized trade activities such as contractor offices,plumbing,heating and air conditioning services,and similar uses that typically have a need to store construction associated equipment and supplies within an enclosed structure or have showrooms displaying the building material for which f 22 dsaetii o 15 the specialize.Outdoor storage yards are permitted with the requirement that such arrcomPletel enc rscr"d.The C-5 district is permitted in accordance with the locational criteria for uses and the goals,objectives,and policies as identified in the future land use element of the Collier County GMP. 1. The following uses,as identified with a number from the Standard Industrial Classification Manual(1987),or as otherwise provided for within this section are permissible by right,or as accessory or conditional uses within the heavy commercial district(C-5). a. Permitted uses. 1. Accounting(8721). 2. Adjustment and collection services(7322). 3. Advertising agencies(7311). 4. Advertising-miscellaneous(7319). 5. Agricultural services(0783). 6. Ancillary plants. 7. Amusement and recreation services,indoor(7999). 8. Amusement and recreation services,outdoor(7999-fishing piers and lakes operation,houseboat rental,pleasure boat rental,operation of party fishing boats,canoe rental only). 9. Animal specialty services,except veterinary(0752,excluding outside kenneling). 10. Apparel and accessory stores(5611-5699). 11. Architectural services(8712). 12. Armature rewinding shops(7694). 13. Auctioneering/auction houses(groups 7389,5999). 14. Auditing(8721). 15. Auto and home supply stores(5531). 16. Automobile Parking.(7521). 17. Automotive dealers,not elsewhere classified(5599). 18. Automotive repair services(7532-7539). 19. Automotive services(7549). 20. Banks,credit Unions and trusts(6011-6099). 21. Barber shops(7241,except for barber schools). 22. Beauty shops(7231,except for beauty schools). 23. Boat dealers(5551). 24. Bookkeeping services(8721). 25. Bowling centers,indoor(7933). 26. Building cleaning and maintenance services(7349). 27. Building construction-General contractors and operative builders(1521-1542). 28. Business associations(8611). 29. Business consulting services(8748). 30. Business credit institutions(6153-6159). 31. Business services(7389-contractors'disbursement,directories-telephone,recording studios,swimming pool cleaning,and textile designers only). 32. Cable and other pay television services(4841)including communications towers up to specified height,subject to section 5.05.09. 33. Carpentry and floor work contractors(1751-1752). 34. Carpet and Upholstery cleaning(7217). 35. Carwashes(7542),provided that carwashes abutting residential zoning districts shall be subject to section 5.05.11 of this Code. 36. Churches. 37. Civic,social and fraternal associations(8641). 38. Coin-operated laundries and dry cleaning(7215). 39. Coin operated amusement devices,indoor(7993). 40. Commercial art and graphic design(7336). 41. Commercial photography(7335). Exhibit C - Page 16 of 22 42. Commercial printing(2752,excluding newspapers). 43. Computer programming,data processing and other services(7371-7379). 44. Computer and computer software stores(5734). 45. Concrete work(1771). 46. Courts(9211). 47. Credit reporting services(7323). 48. Crematories(7261). 49. Dance studios,schools and halls,indoor(7911). 50. Department stores(5311). 51. Detective,guard and armored car service(7381,except armored car and dog rental). 52. Direct mail advertising services(7331). 53. Disinfecting and pest control services(7342). 54. Drycleaning plants(7216,nonindustrial drycleaning only). 55. Drug stores(5912). 56. Eating and drinking establishments(5812 and 5813)excluding bottle clubs.All establishments engaged in the retail sale of alcoholic beverages for on-premise consumption are subject to the locational requirements of section 5.05.01. 57. Educational plants and public schools subject to LDC section 5.05.14. 58. Educational services(8221 and 8222). 59. Electrical and electronic repair shops(7622-7629). 60. Electrical contractors(1731). 61. Engineering services(8711). 62. Equipment rental and leasing(7359). 63. Essential services,subject to section 2.01.03. 64. Facilities support management services(8744). 65. Federal and federally-sponsored credit agencies(6111). 66. Fire protection(9224). 67. Fishing,commercial(0912-0919). 68. Food stores(groups 5411-5499). 69. Funeral services(7261). 70. Garment pressing,and agents for laundries and drycleaners(7212). 71. Gasoline service stations(5541),with services and repairs as described in section 5.05.05. 72. General merchandise stores(5331-5399). 73. Glass and glazing work(1793). 74. Glass stores(5231). 75. Golf courses,public(7992). 76. Group care facilities(category I and II,except for homeless shelters);care units,except for homeless shelters;nursing homes;assisted living facilities pursuant to F.S.§400.402 and ch.58A-5 F.A.C.;and continuing care retirement communities pursuant to F.S.§651 and ch.4-193 F.A.C.;all subject to section 5.05.04. 77. Hardware stores(5251). 78. Health services,offices and clinics(8011-8049). 79. Health and allied services,miscellaneous(8092-8099). 80. Heating and air-conditioning contractors(1711). 81. Heavy construction equipment rental and leasing(7353). 82. Home furniture and furnishings stores(5712-5719). 83. Home health care services(8082). 84. Hospitals(8062-8069). 85. Hotels and motels(7011,7021 and 7041)when located within an activity center. 86. Household appliance stores(5722). 87. Installation or erection of building equipment contractors(1796). 88. Insurance carriers,agents and brokers(6311-6399,6411). 89. Labor unions(8631). Exhibit C - Page 17 of 22 90. Landscape architects,consulting and planning(0781). 91. Laundries and drycleaning,coin operated-self service(7215). 92. Laundries,family and commercial(7211). 93. Laundry and garment services,miscellaneous(7219). 94. Legal counsel and prosecution(9222). 95. Legal services(8111). 96. Libraries(8231). 97. Loan brokers(6163). 98. Local and suburban transit(4111). 99. Local passenger transportation(4119). 100 Lumber and other building materials dealers(5211). • 101 Management services(8741,8742). • 102 Marinas(4493 and 4499-except canal operation,cargo . salvaging,ship dismantling,lighterage,marine salvaging, marine wrecking,and steamship leasing),subject to section 5.05.02. 103 Masonry,stonework,tile setting and plastering contractors(1741-1743). • 104 Medical and dental laboratories(8071 and 8072). • 105 Medical equipment rental and leasing(7352). • 106 Membership . organizations, miscellaneous(8699). 107 Membership sports and recreation clubs,indoor(7997). 108 Mobile home dealers(5271). • 109 Mortgage bankers and loan correspondents(6162). • 110 Motion picture theaters . (7832). 111 Motor freight transportation and warehousing(4225,mini-and self-storage warehousing only). • 112 Motor vehicle dealers,new and used(5511,5521). • 113 Motorcycle dealers(5571). 114 Museums and art galleries . (8412). 115 Musical instrument stores(5736). • 116 Newspapers:Publishing,or publishing and printing(2711). • 117 News syndicates(7383). • 118 Nursing and professional . care facilities(8051- 8059). 119 Outdoor advertising services(7312). • 120 Outdoor storage yards,provided that the yard is located no closer than twenty-five(25)feet . to any public street and that such yard shall be completely enclosed,except for necessary ingress and egress,pursuant to section 4.02.12.This provision shall not be construed to allow,as permitted or accessory use,wrecking yards,junkyards,or yards used in whole or part for scrap or salvage operations or for processing,storage,display,or sales of any scrap, salvage,or secondhand building materials,junk automotive vehicles,or secondhand automotive vehicle parts. 121 Paint stores(5231). • 122 Painting and paper hanging(1721). • 123 Passenger car leasing(7515). • 124 Passenger car rental . (7514). Passenger transportation arrangement(4729). Page 125 126 Periodicals:Publishing or publishing acnd p�riiin'ng(2721). 18 of 22 • • 127 Personal credit institutions(6141). 128 Personal services, . miscellaneous(7299). 129 Personnel supply services(7361 and 7363). • 130 Photocopying and duplicating services(7334). • 131 Photofinishing laboratories(7384). 132 Photographic studios, . portrait(7221). 133 Physical fitness facilities(7991). • 134 Plumbing contractors(1711). • 135 Police protection(9221). • 136 Political organizations . (8651). 137 Professional membership organizations(8621). • 138 Professional sports clubs and promoters,indoor(7941). • 139 Public administration(groups 9111-9199,9229,9311, . 9411-9451,9511-9532,9611-9661). 140 Public or private parks and playgrounds. • 141 Public order and safety(9229). • 142 Public relations services(8743). • 143 Radio,television and . consumer electronics stores(5731). 144 Radio,television and publishers advertising representatives(7313). • 145 Radio and television broadcasting stations(4832 and 4833). • 146 Real Estate(6512,6531-6552). • 147 Record and prerecorded . tape stores(5735). 148 Recreational vehicle dealers(5561). • 149 Religious organizations(8661). • 150 Repair shops and services,not elsewhere classified(7699). • 151 Research,development . and testing services(8731 -8734). 152 Retail-miscellaneous(5921-5963,5992-5999). • 153 Retail nurseries,lawn and garden supply stores(5261). • 154 Reupholstery and furniture repair(7641). • 155 Roofing,siding and sheet . metal work contractors (1761). 156 Secretarial and court reporting services(7338). • 157 Security and commodity brokers,dealer,exchanges and services(6211-6289). • 158 Security systems services(7382). • 159 Shoe repair shops and . shoeshine parlors(7251). 160 Social services,individual and family(8322-8399,except homeless shelters and soup kitchens). 161 Special trade contractors,not elsewhere classified(1799). • 162 Structural steel erection contractors(1791). • 163 Surveying services(8713). • Tax return preparation services(7291). 164 165 Taxicabs(4121). Exhibit C - Page 19 of 22 • • 166 Telegraph and other message communications(4822) . including communications towers up to specified height, subject to LDC section 5.05.09. 167 Telephone communications(4812 and 4813)including communications towers up to specified height,subject to LDC section . 5.05.09. 168 Theatrical producers and miscellaneous theatrical services,indoor(7922-7929,including bands,orchestras and . entertainers;except motion picture). 169 Tour operators(4725). • 170 Travel agencies(4724). • 171 Truck rental and leasing,without drivers(7513). • 172 United State Postal Service . (4311,except major distribution center). 173 Utility trailer and recreational vehicle rental(7519). • 174 Veterinary services(0741 and 0742,excluding outside kenneling). • 175 Videotape rental(7841). • 176 Vocational schools(8243— . 8299). 177 Wallpaper stores(5231). • 178 Watch,clock and jewelry repair(7631). • 179 Water well drilling(1781). • 180 Welding repair(7692). • Any use which was 181 permissible under the prior General Retail Commercial(GRC)zoning district,as identified by Zoning Ordinance adopted October 8,1974,and which was lawfully existing prior to the adoption of this Code. 182 Any other commercial use or professional services which is comparable in nature with the foregoing uses including those . that exclusively serve the administrative as opposed to the operational functions of a business and are purely associated with activities conducted in an office. 183 Any other commercial or professional use which is comparable in nature with the(C-1)list of permitted uses and consistent . with the purpose and intent statement of the district as determined by the board of zoning appeals pursuant to LDC section 10,08.00. b. Accessory Uses. 1. Uses and structures that are accessory and incidental to the uses permitted as of right in the C-5 district. 2. Detached caretaker's residence,subject to section 5.03.05. 3. Temporary display of merchandise during business hours,provided it does not adversely affect pedestrian or vehicular traffic or public health or safety.Merchandise storage and display is prohibited within any front yard;allowed within the side and rear yards of lots. c. Conditional uses.The following uses are permissible as conditional uses in the heavy commercial district(C-5),subject to the standards and procedures established in section 10.08.00. 1. Animal specialty services,except veterinary(0752,with outdoor kenneling). 2. Amusement and recreation services,outdoor(7948,7992,7996,7999). 3. Bottle clubs.(All establishments engaged in the retail sale of alcoholic beverages for on-premise consumption are subject to the locational requirements of section 5.05.01.) 4. Child day care services(8351),provided: i. All areas and surfaces readily accessible to children shall be free of toxic substances and hazardous materials.This shall include all adjacent and abutting �XI��IJ�� p - Page 20 of 22. properties lying within 500 eet o t e chit care cent nearest property ine. a) For purposes of this subsection,the following definitions shall apply: i) Hazardous materials.A material that has any of the following properties:ignitable,corrosive,reactive and/or toxic. ii) Toxic substances.A substance which is,or is suspected to be,carcinogenic,mutagenic,teratogenic,or toxic to human beings. ii. It shall not be located within 500 feet of the nearest property line of land uses encompassing wholesale storage of gasoline,liquefied petroleum,gas,oil,or other flammable liquids or gases. iii. It shall not be located on the same street customarily utilized by construction truck traffic from asphalt plants and excavation quarries. iv. It shall have a minimum lot area of 20,000 square feet and a minimum lot width of 100 feet. v. It shall provide a minimum usable open space of not less than thirty(30)percent of the total square footage of the lot area. vi. It shall provide that all open spaces to be used by children will be bounded by a fence of not less than five(5)feet in height,to be constructed of wood,masonry or other approved material. vii. It shall provide a landscape buffer in accordance with section 4.06.00. viii. It shall comply with the State of Florida Department of Health and Rehabilitative Services Child Day Care Standards, Florida Administrative Code. ix. Where a child care center is proposed in conjunction with,and on the same parcel as,a facility which is a permitted use,the requirements set forth in subparagraphs i through viii above,with the exceptions of subsections iv.and v.,shall be used to provide the protections to children using the child care center intended by this section consistent with the development of the proposed permitted use. 5. Communications(4812-4841)with communications towers that exceed specified height,subject to section 5,05.09. 6. Farm product raw materials(5153-5159). 7. Fuel dealers(5983-5989). 8. Homeless shelters. 9. Hotels and motels(7011,7021,7041 when located outside an activity center.) 10. Correctional institutions(group 9223). 11. Kiosks. 12. Local and suburban passenger transportation(4131-4173). 13. Motion picture theaters,drive-in(7833). 14. Permitted uses with less than 700 square feet of gross floor area in the principal structure. 15. Soup kitchens. 16. Transfer stations(4212,local refuse collection and transportation only). 17. Packing Services(4783). 18. Veterinary services(0741 &0742,with outdoor kenneling). 19. Any other heavy commercial use which is comparable in nature with the foregoing list of permitted uses and consistent with the purpose and intent statement of the district,as determined by the board of zoning appeals pursuant to section 10.08.00. F. Travel Trailer-Recreational Vehicle Campground District(TTRVC). 1. Purpose and intent.The provisions of this district are intended to apply to trailer lots for travel trailers,park model travel trailers and recreational vehicles,not exceeding 500 square feet in gross floor area.Such trailer lots are intended to accommodate travel trailers, model travel trailers,pickup coaches,motor homes,and other vehicular accommodations which are suitable for temporary habitation, used for travel,vacation,and recreational purposes.Campsites are intended to accommodate temporary residency while camping, vacationing or recreating,TTRVC vehicles may be permanently located on a lot;however,no person or persons may occupy said vehicles as permanent places of residence. 2. The following uses are permissible by right,or as accessory or conditional uses within the travel trailer-recreational vehicle campground district(TTRVC). a. Permitted uses. 1. Travel trailers,park model travel trailers,pickup coaches,motor homes and other recreational vehicles. b. Accessory Uses. 1. Uses and structures that are accessory and incidental to the uses permitted as of right in the TTRVC district. 2. One single-family dwelling(not a TTRVC unit)in conjunction with the operation of the TTRVC park. — 21 22 3. Accessory uses and structures customarily associated with travel trai er recreational v hicI aarrk,incluuddinrecreation facilit administration buildings,service buildings including bathrooms,laundries and similar services for residents of the park,and IA 4. Accessory uses and structures customarily associated with travel trailer recreational vehicle lots,including: i. Enclosed utility/storage area of the same siding material and architectural style as that of the associated recreational vehicles,not to exceed an area of sixty(60)square feet.Any utility/storage area shall be located adjacent to its associated recreational vehicle and made a continuous part of a screened-in porch where such a porch is attached to the vehicle as herein provided.Where utility/storage areas are made a continuous part of a screened-in porch,the area of the utility/storage area may not exceed 25 percent of the area of the screened-in porch or 120 square feet,whichever lesser.The County Manager or designee may administratively approve an exception to accessory structure size limitation where such exception is necessary to allow for accessibility,in accordance with the specifications set forth in Section 4 of the Americans with Disabilities Act(ADA),to accommodate a physically handicapped individual. ii. For recreational vehicles fixed by a permanent anchoring system,a screened-in porch elevated or at ground level with a solid roof structure,architecturally compatible with its associated recreational vehicle,not to exceed an area equal to the area of the recreational vehicle to which it is attached.Said screened-in porch shall provide for any site utility/storage space requirements as herein provided and shall not contain any other interior walls.All such screened enclosures must be permitted and constructed according to this Code and applicable building codes.Exterior walls may be enclosed with screen,glass or vinyl windows,except that the storage area shall be enclosed with the same material as the principal unit. 5. Campgrounds containing 100 spaces or more shall be permitted a convenience commercial facility no greater than 15,000 square feet in total land area.This facility shall provide for the exclusive sale of convenience items to park patrons only,and shall present no visible evidence of their commercial character,including signage and lighting,from any public or private street or right-of-way external to the park. c. Conditional uses.The following uses are permissible as conditional uses in the travel trailer recreational vehicle campground district(TTRVC),subject to the standards and procedures established in section 10.08.00: 1. Camping cabins subject to the following standards: i. One camping cabin per approved TTRVC lot. ii. The maximum number of camping cabin lots in any one TTRVC park shall be ten percent of the total number of approved TTRVC lots,not to exceed a total number of twenty(20)camping cabin lots. iii. Maximum floor area of 220 square feet. iv. No internal water or cooking facilities. v. Camping cabins may not be designed as a permanent residence,however,tie-downs or other safety devices may be used in order to provide security against high winds. vi. Camping cabins must be constructed of natural wood materials such as logs,redwood,cedar,or cypress in order that it may blend harmoniously into the natural landscape character normally found in a TTRVC or campground setting. vii. The general development standards required for the TTRVC park shall be applicable to the camping cabin lots. viii. All materials and construction must be in accordance with the Collier County Land Development Code(LDC)and the requirements of the Florida Building Code(FBC). ix. At least one room of the camping cabin must have a minimum of 150 square feet of floor area. x. If camping cabins are to be located in a flood hazard zone as delineated on the most recent flood insurance rate maps ,all requirements of Section 3.02.00 of this LDC must be met. xi. A party shall be allowed a maximum length of stay of two(2)weeks in a camping cabin. 3. Plan approval requirements.Layout plans for a TTRVC park shall be submitted to the County Manager or designee and construction shall be in accordance with approved plans and specifications and further subject to the provisions of site development plans in section 10.02,03.Such plans shall meet the requirements of this district and shall show,at a minimum,those items identified herein. 4. Required internal park street system.All lots/spaces within a TTRVC park shall have direct access from an internal street.All internal streets within the district shall provide safe and convenient access to a public street.The right-of-way widths,paving widths,and other construction standards,including gradient and alignment of all internal streets and drainage shall be subject to the standards for development of supporting infrastructure as provided for in the subdivision regulations,in Chapter 4.For the purpose of this subsection,internal streets shall refer to streets,including necessary right-of-way or easement,located within the confines of the project legal description and providing no access to other land parcels. 5. Required facilities for campsites and TTRV lots. a. Sanitary facilities,including flush toilets,and showers within 300 feet walking distance from every campsite lot and as approved by the Collier County Health Department,or in the event of a private on-site system connection to a county system subject to county ordinances.Lighting shall be provided in sanitary facilities at all times and the facilities shall be accessible to park residents at all times. Exhibit C - Page 22 of 22 b. Potable water supply as approved by the Collier County Health Department and/or the director of development services pursuant to Chapter 10. c. A trash container such as a dumpster shall be located in areas easily accessible and not obstructed by campsites,lots or other TTRVC lots or parking areas. d. An enclosed space shall be open at all times wherein a portable fire extinguisher in operable condition and first aid equipment is available for public use. e. One parking space per campsite or TTRV lot. 6. Sanitary waste disposal.Unless every travel trailer site has a sanitary waste outlet,a central pump-out station shall be provided. 7. Off-street parking.As required in section 4.05.00. 8. Permanent location of TTRV vehicles.TTRV vehicles including park model,travel trailers,may be permanently located on a lot;however, no permanent residency is allowed. 9. Compliance.Where travel trailer/park model lots are being sold to individuals,the developer/owner of the lots shall include in the title transfer document a covenant attesting to the fact that the lot cannot be used as a place of permanent occupancy.All TTRVC parks which commenced construction after the effective date of this district shall comply with all requirements of this district except as further provided herein.No TTRVC park in existence on the effective date of this district shall be altered so as to provide a lesser degree of conformity with the provisions of this district than existed on the effective date of this district.Land already zoned TTRVC which does not meet the acreage requirements may be developed;however,the development shall conform with all other regulations of this district. Every proprietor,manager,homeowners'association,or condominium association of a TTRV park shall maintain a register of tenants or occupants,noting the duration of the rental arrangement or length of occupancy for owner-occupied sites with respect to one or more travel trailers or park models.Said register shall be made available upon demand to the County Manager or designee.In the event of owner-occupied lots within the TTRVC district,said owner is responsible for registering their arrival and departure from their recreation residence with the manager of the TTRVC park.Failure to register will hold the owner responsible for penalties as provided herein.Failure of park owner/manager to provide said register,duly describing the persons who have occupied a travel trailer or park model trailer,and the duration of their occupancy,shall be guilty of a misdemeanor and subject to the penalties provided by this Code. Any proprietor or manager who maintains a falsified register to allow persons to occupy a travel trailer or park model trailer on a permanent basis shall be similarly guilty of a misdemeanor and subject to penalties as provided in this Code. 10. Flood program requirements.All travel trailers,park model travel trailers,recreational vehicles and accessory structures shall comply with the current Collier County Flood Damage Prevention Ordinance[Code ch.62,art.II]if permanently attached to the ground or utility facilities. 11. Anchoring/sewer, water and electrical connections.Park model travel trailers,when positioned on a lot in this district,must be anchored in accordance with the standards set forth in the MH district and TTRVC district and other applicable regulations,and be connected to a public or private water and sewer system.Additionally,such units must obtain electrical service directly from the electric utility authorized to provide such service in Collier County. 12. Building permit.A building permit shall be required for any permitted use prior to water,sewer or electric connection. 13. Signs.As required in section 5.06.00. (Ord.No.08-11,§3.F;Ord.No.10-23,§3.F;Ord.No.14-33,§3.B;Ord.No.16-27,§3.D) Exhibit D Page 1 of 7 2.03.07-Overlay Zoning Districts I. Bayshore Mixed Use Overlay District (BMUD). This section provides special conditions for the properties adjacent to Bayshore Drive as identified by the designation "BMUD" on the applicable official Collier County Zoning Atlas Map or map series. 1. Purpose and Intent. The purpose and intent of this District is to encourage revitalization of the Bayshore Drive portion of the Bayshore Gateway Triangle Redevelopment Area with pedestrian-oriented, interconnected projects. The Overlay encourages uses that support pedestrian activity, including a mix of residential, civic and commercial uses that complement each other and provide for an increased presence and integration of the cultural arts and related support uses. When possible buildings , both commercial and residential, are located near the street , and may have front porches and/or balconies. 2. Applicability. a. These regulations shall apply to the Bayshore Mixed Use Overlay District as identified by the designation "BMUD"on the applicable official Collier County Zoning Atlas Maps. b. Planned Unit Developments (PUDs) that existed prior to March 3, 2006, and properties with Provisional Uses (PU) approved prior to March 3, 2006, including amendments or boundary changes to these PUDs and Provisional Use properties, are not subject to the Bayshore Overlay District requirements. 3. Relationship to the Underlying Zoning Classification and Collier County Growth Management Plan. a. The purpose of the BMUD is to fulfill the goals, objectives and policies of the Collier County Growth Management Plan (GMP), as may be amended. Specifically, the BMUD implements the provisions of section V.F, Bayshore Gateway Triangle Redevelopment Overlay, of the Future Land Use Element. Portions of the Bayshore Overlay District coincide with Mixed Use Activity Center#16 designated in the Future Land Use Element (FLUE) of the Collier County GMP. Development in the activity center is governed by requirements of the underlying zoning district and the mixed use activity center subdistrict requirements in the FLUE, except for site development standards as stated in section 4.02.16 of the LDC. b. Property owners within the BMUD may establish uses, densities and intensities in accordance with the LDC regulations of the underlying zoning classification, or may elect to develop/redevelop under the provisions of the applicable BMUD Subdistrict. In either instance, the BMUD site development standards as provided for in section 4.02.16 shall apply. 4. Bayshore Mixed Use District(BMUD) Subdistricts. a. The BMUD consists of the following subdistricts: i. Neighborhood Commercial Subdistrict (BMUD-NC). The purpose and intent of this subdistrict is to encourage a mix of low intensity commercial and residential uses, including mixed use projects in a single building . This subdistrict provides for an increased presence and integration of the cultural arts and related support uses, including galleries, artists' studios, and live-work units . Developments will be human-scale and pedestrian-oriented. ii. Waterfront Subdistrict (BMUD-W). The purpose of this subdistrict is to encourage a mix of low intensity commercial and residential uses and allow maximum use of the waterfront for entertainment while enhancing the area for use by the general public. Development in this subdistrict is intended to allow a mix of residential and commercial uses including limited marina and boatyard uses. Exhibit D Page 2 of 7 iii. Residential Subdistrict 1 (BMUD-R1). The purpose of this subdistrict is to encourage the development of a variety of housing types which are compatible with existing neighborhoods and allow for building additions such as front porches. The intent in new development is to encourage a traditional neighborhood design pattern and create a row of residential units with uniform front yard setbacks and access to the street . iv. Residential Subdistrict 2 (BMUD-R2). The purpose of this subdistrict is to allow for a variety of housing types and encourage the development of multi-family residences as transitional uses between commercial and single-family development . The multi- family buildings shall be compatible with the building patterns of traditional neighborhood design. v. Residential Subdistrict 3 (BMUD-R3). The purpose of this subdistrict is to allow for a variety of housing types and encourage the development of townhouses and single-family dwellings . All new development in this subdistrict shall be compatible with the building patterns of traditional neighborhood design. vi. Residential Subdistrict 4 (BMUD-R4). The purpose of this subdistrict is to protect the character of existing neighborhoods comprised of detached single-family dwelling units, while allowing for building additions such as front porches. b. Use Categories and Table of Uses. i. All uses permitted in the BMUD subdistricts have been divided into 9 general categories, which are summarized below: a) Residential: Premises available for long-term human habitation by means of ownership and rental, but excluding short-term leasing or rental of less than one month's duration. b) Lodging: Premises available for short-term human habitation, including daily and weekly rental. c) Office and Service: Premises available for the transaction of general business and the provision of services, but excluding retail sales and manufacturing, except as a minority component. d) Retail and Restaurant : Premises available for the commercial sale of merchandise, prepared foods, and food and drink consumption, but excluding manufacturing. e) Entertainment and Recreation: Premises for the gathering of people for purposes such as arts and culture, amusement, and recreation. f) Manufacturing, Wholesale and Storage: Premises available for the creation, assemblage, storage, and repair of items including their wholesale or retail sale. g) Civic and Institutional: Premises available for organizations dedicated to religion, education, government, social service, and other similar functions. h) Infrastructure: Uses and structures dedicated to transportation, communication, information, and utilities, including Essential Services . ii. Interpretation of the Table of Uses. a) The Table of Uses identifies uses as permitted uses (P); accessory uses (A); conditional uses (CU), or a combination of the three. Blank cells indicate that a use is not allowed in the corresponding subdistrict; however, such use may be permitted by the underlying zoning designation. b) Any use not listed in the Table of Uses is prohibited unless the County Manager or designee may determine that it falls within the same class as a listed use through the process outlined in LDC section 1.06.00, Rules of Interpretation. Exhibit D Page 3of7 c) Mixed Use Projects shall be limited to the permitted, accessory and conditional uses allowed in the BMUD-NC and BMUD-W subdistricts, and subject to the MUP approval process as outlined in Section 10.02.15. All other projects may elect to establish uses, densities and intensities in accordance with their underlying zoning or in accordance with the Overlay Subdistrict. However, all projects must comply with site development standards as provided in section 4.02.16. iii. Table of Uses. Table 1. Table of Uses for the Bayshore Mixed Use District Subdistricts BMUD SUBDISTRICTS USE TYPE RESIDENTIAL MIXED ADDITIONAL STANDARDS USE R1 R2 R3 R4 NC W a)RESIDENTIAL 1) Dwelling,Single-Family PPPP P 2) Dwelling, Duplex P P P T-- 3) Dwelling,Two-Family P P P P P 4) Dwelling, Rowhouse P P P P P 5) Dwelling, Multi-Family(3 or more) P P P P P 6) Dwelling, Mobile Home p* *If allowed by underlying zoning 7) Home Occupations A A A A A A 5.02.03 8) Live-Work Units CU P P 4.02.16 C.6. 9)Artist Village CU CU CU P P 4.02.16 C.3. b)LODGING 1) Bed & Breakfast Facilities CU CU CU 4.02.16 C.4. Exhibit D Page 4 of 7 2) Hotels and Motels P P I 3 c)OFFICE/SERVICE 1) Banks, Credit Unions, Financial Services P 2) Business Support Services P P 3) Child Care Services CU CU CU CU CU 4) Community Service Organization P P 5) Drive Thru Service (banks) 6) Government Services P P T-7-) Family Care Facility/Nursing Home P P 8) Medical Services-Doctor Office P P 9) Medical Services-Outpatient/Urgent Care 10) Personal Care Services P P 11) Post Office P P 12) Professional Office or Service P P 13) Rental Services- Equipment/Vehicles P P 14)Studio-Art, Dance, Martial Arts, P P Music 15)Studio- Motion Picture CU 16)Vehicle Services- Maintenance/Repair I 17)Veterinarians Office P P Exhibit D Page 5 of 7 18)Video Rental P P d)RETAIL/RESTAURANTS 1)Auto Parts Sales 2) Bars/Tavern/Night Club P P 3) Drive Thru Retail/Restaurant 4) Gas Station with Convenience Store P P 5.05.05 5) Neighborhood Retail-<2,000 sf P P 6) General Retail-<15,000 sf P P 7) General Retail->15,000 sf CU CU 8) Restaurant P P 9)Shopping Center CU CU T10)Vehicle/Boat/Heavy Equipment Sales CU 4.02.16 C.7. e)ENTERTAINMENT/RECREATION 1) Gallery/Museum P P Id 2) Meeting Facility P P 3) Cultural or Community Facility P P 4)Theater, Live Performance P P 5)Theater, Movie CU CU 6) Recreation Facility, Indoor P P 7) Recreation Facility, Outdoor CU CU Exhibit D Page 6 of 7 8)Amusements, Indoor P P 9)Amusements, Outdoor CU CU 10)Community Garden P P PP P P 4.02.16 C.S. r f)MANUFACTURING/WHOLESALE/STORAGE 1) Laboratorymm- Medical, analytical, research 2) Laundries and Dry Cleaning P 3) Media Production P 4) Metal Products Fabrication P 5) Mini-Warehouses 6) Repair Shops P P 7) Research and Development P P 8)Storage-Outdoor A 4.02.16 C.9. 9)Storage-Warehouse g) CIVIC INSTITUTIONAL 1) College/University P P 2) Educational Plant P P PP P P 3) Hospital T- 4) Membership Organizations P P 5) Public Safety Facility CU 9 CU 6) Religious Institution CU CU CU CU CU CU Exhibit D Page 7of7 J7) Schools- Elementary and Secondary J8)Schools-Vocational and Technical h)INFRASTRUCTURE 1)Automobile Parking Facilities CU 2) Boat Launch A 3) Essential Services PPPP P P 4) Marinas and Boatyards P P 4.02.16 C.7. 5)Transit Station T6) Wireless Telecommunication Facility Note: The Table of Uses identifies uses as permitted uses (P); accessory uses (A); conditional uses (CU), or a combination of the three. Blank cells indicate that a use is not allowed in the corresponding subdistrict; however, such use may be permitted by the underlying zoning designation. Mixed Use Projects shall be limited to the permitted, accessory and conditional uses allowed in the BMUD-NC and BMUD-W subdistricts, and subject to the MUP approval process as outlined in section 10.02.15. All other projects may elect to establish uses, densities and intensities in accordance with their underlying zoning or in accordance with the Overlay Subdistrict. However, all projects must comply with site development standards as provided in section 4.02.16. Exhibit E Description for 2082: Malt Beverages Division D: Manufacturing I Major Group 20: Food And Kindred Products Industry Group 208: Beverages 2082 Malt Beverages Establishments primarily engaged in manufacturing malt beverages. Establishments primarily engaged in bottling purchased malt beverages are classified in Industry 5181. • Ale • Beer (alcoholic beverage) • Breweries • Brewers'grain • Liquors, malt • Malt extract, liquors, and syrups • Near beer • Porter (alcoholic beverage) • Stout (alcoholic beverage) Description for 5813: Drinking Places (alcoholic Beverages) Division G: Retail Trade I Major Group 58: Eating And Drinking Places Industry Group 581: Eating And Drinking Places 5813 Drinking Places (alcoholic Beverages) Establishments primarily engaged in the retail sale of alcoholic drinks, such as beer, ale, wine, and liquor, for consumption on the premises. The sale of food frequently accounts for a substantial portion of the receipts of these establishments. • Bars (alcoholic beverage drinking places) • Beer gardens (drinking places) • Beer parlors (tap rooms) • Beer taverns • Beer, wine, and liquors: sale for on-premise consumption • Bottle clubs (drinking places) • Cabarets • Cocktail lounges • Discotheques, alcoholic beverage • Drinking places, alcoholic beverages • Night clubs • Saloons (drinking places) • Tap rooms (drinking places) • Taverns (drinking places) • Wine bars Exhibit F Pagel of3 Notice of Official Interpretation of Collier County Land Development Code Ordinance Pursuant to Section 10.03.06.P of the Collier County Land Development Code (I DC), public notice is hereby given of an official interpretation. RE: INTP-2017-PL-1233, OFFICIAL INTERPRETATION REQUESTING THE COLLIER COUNTY ZONING DIRECTOR DETERMINE WHETHER THE "INDUSTRIAL MANUFACTURING OF BEER IS A PRINCIPAL, ACCESSORY OR CONDITIONAL USE THAT CAN OCCUR WITHIN THE COMERCIAL-4 /BAYSHORE DRIVE MIXED USE OVERLAY DISTRICT NEIGHBORHOOD COMMERCIAL ZONING DISTRICT(C-4/1141D- NC) C-4/) .lL}NC) The Collier County Zoning Director has been requested to render an official interpretation for the Commercial-4/Bayshore Mixed Use Overlay Neighborhood Commercial zoning district of the Land Development Code and if the industrial manufacturing of beer is allowed as a permitted, accessory or conditional use. Allowable uses within the underlying C-4 zoning area are listed within LDC Section 2.03.07 D and are of three types (as defined within LDC 1.08.00): Accessory use or structure. A use or structure located on the same lot or parcel and incidental and subordinate to the principal use or structure. Conditional use. A use that, due to special circumstances, is not permissible in a zoning district, but may be appropriate if controlled as to number, area, location, or relation to the neighborhood. Principal building, structure,or use. The main or primary use on a lot or parcel,or the building in which the main or primary use is housed or carried out. Within the request for the Official Interpretation, you raise two points: 1. "That industrial manufacturing of beer and related uses with site work as described on the Exhibit "A" cover letter as filed by the Property Owner with its Site Improvement Plan Application is not a permitted use of the Property";and 2. "That"industrial manufacturing of beer"is not a principal,accessory;or conditional use that can occur on the Property." Exhibit F Page 2of3 Essentially both questions are asking the same, "is industrial manufacturing of beer", allowed within the Commercial-4/Bayshore Mixed Use Overlay Neighborhood Commercial zoning district. The first point is directly related to a 2015 Site Improvement Plan (PL20150002675), associated with property at 3555 and 3557 Bayshore Road, which read, "The above referenced project consists of a 6,000 SF building renovation for industrial manufacturing of beer and related uses, with site work." This project description was submitted within the 2015 SIP submittal. Subsequently the project description associated with the SIP was revised to read, "The above referenced project consists of a 6,000 square foot building for a lounge with microbrewery, with site work." Regardless of the revised narrative associated with the SIP,your Official Interpretation focuses on the question, "is industrial manufacturing of beer allowed on the property and within the C4/BMUD-NC zoning district?" The industrial manufacturing of beer,more typically known as a brewery(SIC 2082)as a principal use is in fact an industrial use that is not allowable as aprincipal or conditional use within either the underlying C-4 zoning district or the BMUD- NC overlay district. As noted earlier within this official interpretation, within each zoning district there are permitted uses, conditional uses and accessory uses. The allowance of a microbrewery (on-site brewing of beer) associated with a proposed drinking establishment or in this instance beer garden,is an accessory use that is directly related to the principal use. The beer produced within the establishment will be for on-site consumption and incidental and subordinate to the primary use on the property. The subordinate relationship is reflected in the square footage allocations of the facility. Within the approved SIP (PL20150002675), 3,845 sq. ft. of the 6,000 total sq. ft. is proposed drinking establishment/drinking area or 57 percent of the structure; and 2,585 sq. ft. is dedicated to the microbrewery. Any percentage less than fifty percent qualifies as subordinate, but this is not the only test. The subordinate use must also be directly related to the primary use of the property. In this instance the microbrewery is directly intertwined with the beer garden as a source of the establishment's main product of sale(beer). As noted within this official interpretation, the zoning district appropriate for a brewery is Industrial Zoning. This is based upon the size, scope, scale and intensity of such facilities, often associated with large scale production capacities, demands upon utility infrastructure and distribution capability. A traffic analysis dated July 13, 2016 was completed by TR Transportation Consultants, Inc. Review of the trip generation associated with the beer garden and accessory microbrewery stated that the drinking area would generate 44 P.M.peak hour trips and the microbrewery would produce 3 P.M. peak hour trips, or six(6)percent of the total P.M.peak hour trips. The projected trip split further suggests that the microbrewery is subordinate to the overall operation. Additionally, the 2,585 square feet of the facility dedicated to the microbrewery use is of a scale that limits the external influence of the microbrewing activities to the subject site,with little to no external effect upon surrounding land uses. Exhibit F Page 3 of 3 Finally, to ensure that the production of beer is primarily for the operation of the brew garden, a condition of approval required of this Official Interpretation is that the sales of onsite consumption must be maintained at a minimum percentage of 51 percent of total sales and that the establishment shall provide documentation of percentage of sales on an annual basis to the Growth Management Department. This reporting requirement will ensure the primary use of the property is maintained. It should be noted that the property in question received a zoning verification letter dated October 2, 2015, prior to the SIP submittal,to clarify if a lounge with accessory microbrewery was a use provided for on the property. Within 30 days of publication of the public notice, any affected property owner or aggrieved or adversely affected party may appeal the interpretation to the Board of Zoning Appeals(BZA). An affected property owner is defined as an owner of property within 300 feet of the property lines of the land for which the interpretation is effective. An aggrieved or adversely affected party is defined as any person or group of persons which will suffer an adverse effect to an interest protected or furthered by the Collier County Growth Management Plan or Land Development Code. A request for appeal must be filed in writing and must state the basis for the appeal and include any pertinent information, exhibits,or other back-up information in support of the appeal. The appeal must be accompanied by a$1,000.00 application and processing fee. (If payment is in the form of a check, it should be made out to the Collier County Board of Commissioners.) An appeal can be hand delivered or mailed to my attention at the address provided. Please do not hesitate to contact me should you have any further questions on this matter. The interpretation file and other pertinent information including the Zoning Verification Letter, Site Improvement Plan, and Traffic Analysis related to this interpretation are kept on file and may be reviewed at the Growth Management Division,Planning and Regulation building at 2800 North Horseshoe Drive,Naples, FL 34104. Please contact the staff member below at (239)252-6819 to set up an appointment if you wish to review the file. Mike Bosi,AICP, Director, Planning and Zoning Department Exhibit G Page 1 of 3 Narrative For Appeal of INTP-2017-PL-1233 Background Ank Crafts, LLC a/k/a ANKROLAB BREWING COMPANY (the"Brewing Company"), having a Business Mailing Address 3555 Bayshore Drive, Naples, Florida 34113, filed a Site Improvement Plan application on or about July 21, 2016 for a project consisting of"a 6,000 SF bld. renovation for industrial manufacturing of beer and related uses, with site work." "Industrial manufacturing of beer", known as a brewery, is an industrial use falling under the SIC code of SIC 2082 (See, Exhibit "D" to the 01 Application as hereinafter defined). The Brewing Company's Site Improvement Plan application is known as the Bayshore Brew Garden-PL20150002675 ("Site Improvement Application"). Additionally,on June 12,2017,the Brewing Company filed an application for a building permit under PRBD20170622946 to"convert existing commercial building to a brewery and lounge" (the "Building Permit Application"). As of the date hereof, the Building Permit Application has been rejected by Collier County, Florida, and we understand that all proceedings and work pertaining to the Building Permit Application have been stayed pursuant to Sec. 250-59, Laws of Fla. Ch. 67-1246, §17 (the Site Improvement Application and Building Permit Application are collectively referred to herein as the "Project"). The address and parcel numbers for the Project are 3555 &3557 Bayshore Drive&Parcel Number: 618413200001 (the "Property"). We represent 3570 Bayshore Drive, LLC (the "3570 Bayshore Drive"), the owner of parcels of improved, commercial property, including valuable parking area, located in the C-4 zoned Bayshore Drive Mixed Use Overlay District-Neighborhood Commercial Sub-district ("BMUD- NC)directly across the street from the Property owned by the Brewing Company. The Property has a Collier County, Florida Future Land Use Map("FLUM")Element Designation of Urban, Mixed Use District, Urban Coastal Fringe Subdistrict and is further located in the Bayshore/Gateway Triangle Redevelopment Overlay. Allowable uses within the Urban, Mixed Use District, Urban Coastal Fringe Subdistrict designation of the Future Land Use Map and the Bayshore/Gateway Triangle Redevelopment Overlay do not include industrial manufacturing of beer or any other types of industrial uses whatsoever. In fact, in the Urban Designation of the FLUM, Industrial uses are only permitted in the Urban, Industrial District and in the Urban Commercial District, certain quadrants of Interchange Activity Centers. See,for example, the Collier County Future Land Use Element, Future Land Use Designation Description Section, I. Urban Designation, b. 14. Consistent with the Comprehensive Plan, the Property has a zoning designation of General Commercial District(C-4)and is further located in the Bayshore Drive Mixed Use Overlay District - Neighborhood Commercial Sub-district ("BMUD-NC) as confirmed by the Collier County Zoning Map(See, Exhibit"C"as attached to the OI Application). The underlying C-4 zoning uses for the Property are listed in Section 2.03.07 D of the County's LDC, and the LDC incorporates Exhibit G Page 2of3 numerical references, that are defined within the"Standard Industrial Classification (SIC) Manual — 1987", in identifying and listing allowable zoning uses. "Industrial manufacturing of beer", known as a brewery having SIC code 2082, is not listed as a principal, conditional or accessory use in either the General Commercial District (C-4) or the Bayshore Drive Mixed Use Overlay District—Neighborhood Commercial Sub-district ("BMUD- NC), and the Property is not and cannot be zoned industrial. See, Section 2.02.03 of the Collier County Land Development Code. Further, the purpose and intent of the C-4 district is to provide the opportunity for the most diverse types of commercial activities, not industrial activities permitted under industrial zoning. See, Section 2.03.03 of the Collier County Land Development Code. Although not disclosed by the Brewing Company in any of the Project documents provided to the County or its staff, 3570 Bayshore Drive has confirmed with the Brewing Company that they seek to manufacture beer on the Property for offsite distribution,sales and consumption,as well as on- site consumption. In view of the Project and the foregoing, 3570 Bayshore Drive filed an application for Official Interpretation ("01 Application") on March 24, 2017 seeking confirmation from the Director of the Collier County Planning and Zoning Department that: (i)"industrial manufacturing of beer and related uses with site work" is not a permitted use of the Property, and (ii) "industrial manufacturing of beer" is not a principal, accessory or conditional use that can occur on the Property. On August 10, 2017 and in response to the 01 Application, a public Notice of Official Interpretation was issued ("INTP-2017-PL-1233"). INTP-2017-PL-1233 gives the following opinions/interpretations (among others): (i) Industrial manufacturing of beer, more typically known as a brewery (SIC code 2082) is an industrial use that is not allowable as a principal or conditional use within either the underlying C-4 zoning district or the BMUD-NC overlay district; (ii) That the brewery or a microbrewery is allowed as an accessory use to the proposed drinking establishment (or in this instance beer garden). (iii) The beer produced within the Property will be for on-site consumption and incidental and subordinate to the primary use, drinking establishment, on the Property. a. The subordinate relationship is evidenced by the % of building square footage dedicated for drinking establishment use vs the brewery. b. The subordinate relationship is evidenced by a traffic analysis showing that the brewery would generate 6 percent of the total P.M. peak hour trips. c. The subordinate brewery use is directly related to the drinking establishment as the brewery is directly intertwined with the beer garden as a source of the establishment's main product of sale(beer). d. That a condition of approval, required for INNTP-2017-PL-1233, is that "sales of onsite consumption must be maintained at a minimum percentage of 51 Exhibit G Page 3of3 percent of total sales and that the establishment shall provide documentation of percentage of sales on an annual basis to the Growth Management Department." Appeal On September 6, 2017, 3570 Bayshore Drive filed an appeal of INTP-2017-1233. In connection with the same, 3570 Bayshore Drive requests that INTP-2017-1233 be modified and amended as necessary to confirm the following: (i) The Property has a Collier County, Florida Future Land Use Map ("FLUM") Element Designation of Urban, Mixed Use District, Urban Coastal Fringe Subdistrict and is further located in the Bayshore/Gateway Triangle Redevelopment Overlay. Allowable uses within the Urban, Mixed Use District, Urban Coastal Fringe Subdistrict designation of the Future Land Use Map and the Bayshore/Gateway Triangle Redevelopment Overlay do not include industrial manufacturing of beer or any other types of industrial uses whatsoever. Further, in the Urban Designation of the FLUM, industrial uses are only permitted in the Urban, Industrial District and in the Urban Commercial District, certain quadrants of Interchange Activity Centers. (ii) Industrial manufacturing of beer, more typically known as a brewery (SIC code 2082) is an industrial use that is not permitted on the Property and is not permitted as a principal, conditional or accessory use on the Property. Alternatively, and in the event it is determined that a brewery or a microbrewery is allowed as an accessory use to the proposed drinking establishment, 3570 Bayshore Drive requests that INTP- 2017-1233 be modified and amended as necessary to confirm the following: (i) The beer produced or manufactured within the Property shall not be for off-site distribution, sales and consumption and shall be manufactured for on-site consumption only and incidental and subordinate to the drinking establishment use on the Property. a. That a condition of approval, required for INTP-2017-PL-1233 (as amended), is that "beer produced or manufactured on the Property shall: (i) not be for ofJ= site distribution, sales and/or consumption, and (ii) be manufactured/used for on-site consumption only." An accessory use must be both incidental and subordinate to the principal use. See, Section 1.08.02 of the LDC. A brewery is not a permitted type of accessory use on the commercially zoned Property. Further,it is not incidental and subordinate to the drinking establishment.3570 Bayshore Drive disputes the percentage of building square footage dedicated for drinking establishment use vs the brewery as stated in INTP-2017-PL-1233.The intensity of this industrial/manufacturing use is fully incompatible with the commercial use C-4 zoning,even as an accessory and incidental use to any other permitted C-4 use. INTP-2017-PL-1233 establishes dangerous precedent that goes well beyond the Property in how it will be applied in the future. In a nutshell, the Brewing Company cannot improperly seek to re-classify a principal use as an accessory use to subvert and undermine Collier County's Comprehensive Plan and LDC. Exhibit H T T 12 U., 1 la THOMPSON LEW sth" "Pa'g" e 1 \11't34102 6 EL 239.316.3006 OFFICE counselors at 239 307.4839 FACSIMILE IA4(,,,,III}WM Orvi May 17, 2017 VIA HAND DELIVERY Growth Management Division/ Planning and Regulation ATTN: Business Center 2800 North Horseshoe Drive Naples, FL 34104 Re: Appeal of Staff Approval of the Site Improvement Application; 3555 & 35557 Bayshore Drive& Parcel #: 618413200001 (the"Property"); Bayshore Brew Garden— P1,20150002675 ("Site Improvement Plan") Ank Crafts LLC ("Property Owner") To Whom It May Concern: We represent 3570 Bayshore Drive. LLC (the "Adjacent Owner"),the owner of parcels of improved, commercial property, including valuable parking area, located in the C-4 zoned Bayshore Drive Mixed Use Overlay District—Neighborhood Commercial Sub-district ("BMUD- NC")directly across the street from the Property,which is currently owned by the Property Owner and has an approved Site Improvement Plan, which approval was issued on April 18, 2017. "for industrial manufacturing of beer and related uses with site work." We have enclosed with this request I application a check for payment of the requisite Collier County tiling fees. and our client asks that you contact and follow-up with this office directly regarding this appeal. On behalf of the Adjacent Owner, we hereby tile this appeal pursuant to Section 250-58 based on the following: 1. That"industrial manufacturing of beer and related uses with site work"as described on the Exhibit "A" cover letter (attached hereto) as tiled by the Property Owner with its Site Improvement Plan Application is not a permitted use of the Property:and 2. That "industrial manufacturing of beer" is not a principal, accessory or conditional use that can occur on the Property. w w w tlifim.com Growth Management Division / Planning and Regulation Exhibit H KITN: Business Center Page 2 of 6 May 17. 2017 Page 2 By way of background. the Property has a zoning designation of General Commercial District (C-4) and is further located in the Bayshore Drive Mixed Use Overlay District — Neighborhood Commercial Sub-district ("BMUD-NC") as confirmed by the attached copy of the Collier County Zoning Map(attached hereto as Exhibit "C"). Allowable uses within the underlying C-4 zoning are listed in Section 2.03.07 1) of the County's LDC. and the LDC incorporates numerical references, that are defined within the "Standard Industrial Classification (SIC) Manual — 1987", in identifying and listing allowable zoning uses. The "industrial manufacturing of beer" or brewery property falls under SIC code of SIC 2082 (attached hereto as Exhibit "D"). and SIC 2082 is not listed as a principal or conditional use in either the General Commercial District(C-4)or the Bayshore Drive Mixed use Overlay District Neighborhood Commercial Sub-district("BMUD-NC"). In fact, the site is not zoned industrial and the intensity of this industrial /manufacturing use is fully incompatible with C-4 zoning,even as an accessory and incidental use to any other permitted C-4 use. In fact, the Site Improvement Plan Application confirms that the industrial manufacturing of beer is not incidental as one-half of the six thousand (6.000) square foot building is designated as an industrial manufacturing use on the Parking Requirements notation in the Site Improvement Plan Application. Further. the Site Improvement Plan fails to acknowledge the use zoning limitations (as described above) and fails to properly limit and restrict the requested improper uses of the Property. We believe that any "industrial manufacturing of beer" use at the Property would be improper. As such,we believe that"industrial manufacturing of beer" is not a principal,accessory or conditional use that can occur on the Property, and we respectfully ask to receive written confirmation from Collier County for the same. By way of separate letter, we are also submitting formal objections to the staff related to the Site Improvement Plan Application and comments not included by staff in prior reviews of the Site Improvement Plan Application. If you have any questions regarding this mater,please feel free to contact me. Very truly yours, Douglas A. Lewis For the Firm DAL/dja cc: Mr. James Turri .11.10 Exhibit H Page 3 of 6 t Blair A. Foley, P.E. Civil Engineer J Development Consultant July 21,2016 Mr.Renald Paul Collier County Development Services 2800 North Horseshoe Drive Naples,Florida 34104 Re: Bayshore Brew Garden+1-6000 SF existing building renovation with site infrastructure Site Improvement Plan(SIP) Submittal—PL20150002675,Folio 6184320001 3555 Bayshore Dr.,Naples,FL Dear Mr. Paul: The above referenced project consists of a 6000 SF bld.renovation for industrial manufacturing of beer and related uses.with site work. The project is Iocated on a+/- 1.05 ac: site on Bayshore Dr. Please find the attached data to process this SIP: 1. Review Check and fee worksheet. 2. 6 SIP sets,signed and sealed. 3. 1 SIP applications. 4. 1 Cover Letters. 5. 6 Landscape/irrigation plsns. 6. 6 Aerial photographs in SDP set. 7. 6 Floor plans,elevations,rendering w/architect's color representations. 8. 6 Boundary surveys, including one signed and sealed. 9. 1 Warranty Deeds. 10. Irrigation and water meter sizing form,not required as it is City of Naples water. 11. 2 Sealed cost estimates for utility and paving,grading and drainage. 12. Property Chvnership/Agent Authorization. • 13. 1 Engineer's Report,signed and sealed. I4. TIS attached,on the CD. • 15. CD's of plans in pdf and dwg,and other project data. 16. 1 Engineering, and Utility checklists. 17. 2 COA applications. 18. Fire Variance for driveway width. • Thank you for processing this request. Please call if you have any questions. Sin ely, Blair A. ley,PE Presiden Blair A.Foley; RE. • 120 Edgemere Way South•Naples,Florida 34105 239.263.1222 •Fax 239.263.0472• Cellular 239.289.4900• email: fois000@aoLcom Exhibit "A" • Zoning Map http://colliercountygmd.maps.arcgis.com/apaac/Xei fJ'ieyvpr/iindex... 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